This spring the influential Seventh Circuit Court of Appeals (having jurisdiction over Illinois, Indiana, and Wisconsin) split with other U.S. appellate courts, possibly setting the stage for the U.S. Supreme Court to resolve the issue of workplace discrimination based on sexual orientation. In Hively v. Ivy Tech Community College, the Seventh Circuit held that Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, religion, color, national origin, or gender/sex, also covers discrimination on the basis of sexual orientation.
The Seventh Circuit’s decision was based on two broad arguments. The court first found that sexual orientation discrimination is a natural extension of a gender nonconformity claim, which the U.S. Supreme Court recognized as a form of impermissible sex discrimination in 1989. The majority reasoned that discriminating against men or women for their sexual orientation is “difficult to extricate” from the already impermissible discrimination of gender stereotyping. Second, the court found that sexual orientation discrimination is a form of associational discrimination, similar to discriminating against someone based on the race of the person or persons with whom they associate.
While sexual orientation discrimination may not have been in the minds of the drafters of Title VII, the Seventh Circuit majority declared “the fact that the enacting Congress may not have anticipated a particular application of the law cannot stand in the way of the provisions of the law that are on the books.” In other words, while Congress may not have thought “sex discrimination” included sexual orientation discrimination when Title VII was enacted, that is what “sex discrimination” means now as the law has evolved.
If your business is in Illinois, Indiana, or Wisconsin, this law will have immediate effect on you and you should carefully review your policies and practices to ensure compliance with the Hively decision. Businesses outside these states and the U.S. should assure they understand and comply with the current state of the law sexual orientation discrimination as the law is evolving at regional and federal levels. Employers with questions on their compliance should consult with experienced legal counsel in the employment and labor law department of an Ally Law member firm.
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For related information on treatment of gender identity in Canada, see our blogpost “Gender Identity and Expression in the Workplace”.