In a case that we have been closely monitoring, the Seventh Circuit Court of Appeals sitting en banc ruled 8-3 on April 4, 2017, that Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace on the basis of sexual orientation. The case, Hively v. Ivy Tech Community College, involved Kimberly Hively, a part-time adjunct professor at Ivy Tech Community College in South Bend, Indiana who alleged she was denied the opportunity to interview for full-time positions on numerous occasions because of her sexual orientation.
We previously reported that a panel of the Seventh Circuit originally denied Hively’s appeal of a lower court ruling that denied her claim on the grounds that the word “sex” in Title VII was meant to be interpreted narrowly and only applied to a person’s gender, not sexual orientation, which was consistent with the Seventh Circuit’s prior decisions on this issue. However, at Hively’s request, the full court reconsidered her appeal in order to take a “fresh look” at Hively’s claim.
In re-examining the issue, the court asked whether Hively would have been treated the same way had she been a man but the sex or gender of her partner remained the same. Hively argued that if she had been a man married to a woman, Ivy Tech would not have refused to consider her for a full-time position. The court agreed that, when viewed through this lens, Hively presented a “paradigmatic sex discrimination” case.
Although the Illinois Human Rights Act already prohibited employers in Illinois, including school districts, from discriminating against employees on the basis of their sexual orientation, the Seventh Circuit’s decision in Hively will allow employees to pursue sexual orientation employment discrimination claims under both State and federal law.
Contact Ellen Rothenberg or Chris Hoffmann with your employment discrimination inquiries.