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In a recent Seventh Circuit opinion, Hively v. Ivy Tech Community College, the court reluctantly affirmed a district court’s holding that Title VII of the Civil Rights Act of 1964 (“Title VII”) provides no recourse for employees who are discriminated against because of their sexual orientation.

Kimberly Hively was a part-time adjunct professor at Ivy Tech Community College. Despite having the proper qualifications and applying for six full-time positions with the college, she was not interviewed for any of the positions, and her contract was not renewed in July of 2014.  Ms. Hively brought a charge with the Equal Employment Opportunity Commission (“EEOC”) and later a lawsuit in federal court, alleging that she was discriminated against because of her sexual orientation.

There is clear precedent in the Seventh Circuit—which has jurisdiction over all federal claims in Illinois—that Title VII does not prevent sexual orientation discrimination. But this case came on the heels of a 2015 EEOC decision in Baldwin v. Foxx, in which the EEOC determined that discrimination based on sexual orientation is fundamentally a form of sex discrimination under Title VII.  Specifically, the EEOC in Baldwin relied on a United States Supreme Court ruling protecting employees from discrimination based on sex stereotypes. The Seventh Circuit acknowledged that the EEOC’s interpretation deserves some consideration, but ultimately followed its own precedent in upholding the dismissal of Hively’s claim.

Though the case could have been decided in only a few pages by citing Seventh Circuit precedent, the court spent 40 extra pages summarizing the state of the law, highlighting some of the logical inconsistencies in existing case law, and urging the Supreme Court or Congress to weigh in on the issue. In its thorough analysis, the court found that many courts presented with a Title VII claim involving sexual orientation attempted to parse whether the claim was based on sex stereotyping (i.e., not conforming to gender norms), which is viable under Title VII, or based on sex orientation, which currently is not viable under Title VII. This approach tends to protect gay men when they’re effeminate and lesbians when they’re masculine, with less protection for gay men and lesbians whose appearance and demeanor more closely align with a heterosexual stereotype.

The court questioned the logic of a standard that allows gender non-conformity claims under Title VII when the non-conformity relates to style of dress or manner of speaking but not when the non-conformity relates to the person with whom an employee chooses to engage in a sexual relationship. The court further noted the paradox that the Supreme Court allows same sex marriage but would allow an employer to fire an employee for that very conduct. Finally, the court analogized sexual orientation claims to interracial relationships: if it is race discrimination to fire an employee for marrying someone of another race, it seems logical that it should be sex discrimination to fire someone for marrying someone of another sex.

Nevertheless, the court felt constrained by existing precedent. So, for now, sexual orientation claims under Title VII remain unviable, while sex stereotype/sex non-conformity claims under Title VII remain viable.