By Sam Schwartz-Fenwick and Kylie Byron

Seyfarth Synopsis: The Seventh Circuit has ruled that Title VII does not provide protection from discrimination on the basis of sexual orientation. However, the reasoning behind the Court’s ruling seems calculated to bring the question before the Seventh Circuit on en banc review or before the Supreme Court itself.

In a defeat for proponents of an expansive interpretation of Title VII, the Seventh Circuit in Kimberly Hively v. Ivy Tech Community College, affirmed the district court’s ruling that Title VII does not provide protection from discrimination on the basis of sexual orientation. However, language in the opinion suggests that the staying power of this ruling might be short-lived.

While noting Circuit precedent such as Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, (7th Cir. 2000) finding that Title VII does not extend to claims of sexual orientation discrimination, the Court focused the bulk of its 42 page decision on whether this precedent can stand now that the EEOC has taken the position that sexual orientation discrimination is per se sex discrimination under Title VII.

The Court appeared friendly to the reasoning of the EEOC. It noted that the line between sexual orientation discrimination and impermissible gender stereotyping is difficult to define, when it exists, and that separating sexual orientation claims from sex and gender stereotyping claims has the “illogical” result of protecting heterosexual individuals who make gender stereotyping claims but not gay, bisexual or lesbian individuals who make the same claims.  The court also noted that there is “no rational reason” for protecting LGB employees from gender stereotyping claims only if that employee acts “stereotypically gay” enough that their behavior can be seen as flagrantly defiant of gender norms.

The Court then noted that, despite the difficulty in separating sex stereotyping claims from sexual orientation claims, some discrimination claims are themselves discrimination on the basis of sexual orientation rather than on the basis of sex discrimination, such as stereotypes about lifestyle. As such, the Court stated that not all sexual orientation claims are sex stereotyping claims, and thus despite the “unsatisfactory” results and disagreements in district courts, Title VII could not be extended to cover sexual orientation absent further clarification from the Supreme Court.

The Circuit’s ruling in Hively is yet another indicator – as noted by the Court of Appeals itself, and by our previous blogs – that a unified prohibition on sexual orientation discrimination will almost certainly have to come from the Supreme Court or through legislative action such as the Equality Act.  With the Court’s order of a stay of the Title IX case G.G. v. Gloucester Cty. Sch. Bd. (a case involving the scope of the definition of “sex” under Title IX), the Court may be indicating that it considers the matter ripe for adjudication

The Seventh Circuit’s ruling in Hively predicts a period of significant uncertainty in the law regarding sexual orientation protections in employment, beginning with contradictory rulings in various district courts, potential circuit splits, and culminating with the need for legislative or Supreme Court action.  Employers should consult with counsel to evaluate their internal policies, practices and procedures with an eye towards sexual orientation claims.

If you have questions regarding this topic, please contact the authors or your Seyfarth attorney.