Seventh Circuit will rehear en banc Hively v. Ivy Tech Community College on November 30, 2016 to determine if sexual orientation discrimination is prohibited by Title VII

By: Samantha Hudler

Will the Seventh Circuit finally put an end to the prolonged legal debate over sexual orientation discrimination in employment that many individuals in the legal and Lesbian, Gay Bisexual, and Transgender (“LGBT”) communities are waiting to hear?[1]  Just three years ago, sixty nine percent of Americans mistakenly assumed that firing an employee due to the fact that she is gay was already prohibited by law.[2]  However, to date, the federal government and a majority of the states still do not have anti-discrimination laws which makes it entirely legal to fire an employee on the basis of his or her sexual orientation.[3]

Title VII of the Civil Rights Act of 1964 protects employees from discrimination in employment based on race, color, religion, sex, and national origin.[4]  Clearly absent from this list of protected classes is sexual orientation.[5]  Despite numerous efforts to add sexual orientation protection such as the Employment Non-Discrimination Act (“EDNA”) and the Equality Act, Congress has repeatedly rejected legislation to extend Title VII protections to cover sexual orientation.[6]

On July 28, 2016, the Seventh Circuit decided in Hively v. Ivy Tech Community College that it was bound by circuit precedent and held that sexual orientation is not protected by Title VII.[7] The decision was rendered just one year after the Equal Employment Opportunity Commission held that sexual orientation is an allegation of sex discrimination which is protected by Title VII.[8]  Kimberly Hively alleged her employer failed to promote her from part-time to full-time employment due to her sexual orientation and ultimately terminated her based on her sexual orientation.[9]

When the Seventh Circuit initially denied her claim, the majority panel otherwise observed “it seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry.”[10]  Moreover the panel discussed the Obergefell decision which allows same-sex couples the right to marry in every state and expressed the “paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.”[11]  Despite the fact that the panel does not agree with the existing law, it nonetheless concluded Title VII does not cover sexual orientation discrimination until new legislation or the Supreme Court declares otherwise.[12]

On October 13, 2016, the Seventh Circuit unpredictably vacated its opinion from July 28, 2016 and granted a rehearing en banc which is presently scheduled for November 30, 2016.[13]  The decision is attracting people’s attention and resulting in speculation as to whether the Seventh Circuit will finally answer the question on whether sexual orientation discrimination is protected by Title VII.[14]  The Seventh Circuit is not the only Circuit which holds that Title VII does not address sexual orientation discrimination, the First, Second, Third, Fourth, Fifth, Sixth, Eighth, Ninth, and Tenth Circuits, as well as the D.C. Circuit wholly agree.[15]  Thus, it will be interesting to see if the Seventh Circuit, sitting en banc, decides on November 30, 2016 that it will yet again reject Ms. Hively’s claim citing unequivocal precedent or if the panel will ultimately provide the LGBT community the protection that it so justly deserves.[16]

[1] See Jay-Anne B. Casuga, Lesbian Professor’s Bias Case Gets Full 7th Cir. Hearing, Bloomberg BNA (Oct. 12, 2016), http://www.bna.com/lesbian-professors-bias-n57982078369/.

[2] Lauren Godles, What’s Going on With LGBT Discrimination in the Workplace?, OnLabor (Apr. 6, 2016), https://onlabor.org/2016/04/06/whats-going-on-with-lgbt-discrimination-in-the-workplace/ (showing that a poll conducted found that sixty nine percent of Americans falsely believed it was illegal to fire an employee for being gay).

[3] See id.

[4] 42 U.S.C. § 2000(d) et. seq.

[5] See id.

[6] See Godles, supra note 2. See also Lisa Milam-Perez & Cynthia L. Hackerott, Perhaps seeing ‘writing on the wall,’ 7th circuit vacates panel decision that Title VII doesn’t cover sexual orientation, Emp. L. Daily (Oct. 13, 2016), http://www.employmentlawdaily.com/index.php/news/perhaps-seeing-writing-on-the-wall-7th-circuit-vacates-panel-decision-that-title-vii-doesnt-cover-sexual-orientation/.  In 1994, EDNA was introduced in almost every Congress, however, it did not make it through the House and has not been reintroduced since 2013. Godles, supra note 2.  The Equality Act was introduced in 2015 which aims to amend Title VII to cover sexual orientation and gender identity discrimination in employment and other areas, however, it is currently stuck in committee and is unlikely that the Republican Congress will approve it.  Id.

[7] See Milam-Perez & Hackerott, supra note 6. See also Hively v. Ivy Tech Cmty. Coll., S. Bend, 830 F.3d 698 (7th Cir. 2016), amended, No. 15-1720, 2016 WL 5921763 (7th Cir. Aug. 3, 2016), reh’g en banc granted, opinion vacated (Oct. 11, 2016).

[8] See id. See also Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4398651, at *5, *10 (July 16, 2015) (concluding that “sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex” and that “sexual orientation discrimination is also sex discrimination because it is associational discrimination of the basis of sex,” in which an employer discriminates against LGBT employees due to who they date or marry).  In March 2016, the EEOC filed its first lawsuits alleging sexual orientation discrimination under unlawful sex discrimination. Trudy Ring, EEOC Files First Suits Challenging Sexual Orientation Discrimination, The Advoc. (Mar. 1, 2016), http://www.advocate.com/ business/ 2016/3/01/eeoc-files-first-suits-challenging-sexual-orientation-discrimination (quoting EEOC General Counsel David Lopez “we are hopeful that federal judges across the country will give strong deference to the EEOC’s strongly reasoned legal decisions in Baldwin vs. Foxx and Macy vs. Holder”).

[9] See Dawn Geske, Seventh Circuit to decide whether discrimination based on sexual orientation violates Title VII, Cook County Record (Oct. 19, 2016).  See also Hively v. Ivy Tech Cmty. Coll., S. Bend, 830 F.3d 698 (7th Cir. 2016), amended, No. 15-1720, 2016 WL 5921763 (7th Cir. Aug. 3, 2016), reh’g en banc granted, opinion vacated (Oct. 11, 2016).

[10] See id.  The court went on to say “the agency tasked with enforcing Title VII does not condone it, many of the Federal Courts to consider the matter have stated that they do not condone it, and this could undoubtedly does not condone it.”  See id.

[11] See id.  In addition, the court states that many citizens would be shocked to discover that any private employer under federal law can call an employee into his office and tell that individual he is fired because he is gay and that employee would have no remedy unless he is located in a state or locality that has a law protecting employees against sexual orientation discrimination.  See id.

[12] See Milam-Perez & Hackerott, supra note 5.  Despite the fact that an abundance of judicial opinions are in accord with the idea that sexual orientation in employment is no longer acceptable, Congress has made no effort to modify Title VII.  See Hively v. Ivy Tech Cmty. Coll., S. Bend, No. 15-1720, 2016 WL 4039703 (7th Cir. July 28, 2016).  See, e.g., Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006); Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001); Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999); Hopkins v. Balt. Gas & Elec. Co., 77 F.3d 745, 751-52 (4th Cir. 1996).

[13] See id.

[14] See Geske, supra note 8 (quoting Damon Suden, Partner at Kelly Drye who stated “it’s pretty rare to get an en banc review in general…so I think that it should raise people’s interest in the case” and “I think it means the en banc court wants to address this issue…if I was the plaintiff I’d be pretty optimistic about my chances here” and finally “If they wanted to leave things with the status quo they could have denied the en banc review”).

[15] See Milam-Perez & Hackerott, supra note 5.

[16] See id.

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