Human Resources News & Insights

Federal court says sexual orientation not protected under Title VII: Now what?

Just when you think the employment law world has reached a solid conclusion on an issue, something like this happens. 

The EEOC has been making the case that employees’ sexual orientation is protected against discrimination by Title VII of the Civil Rights Act. In essence, the federal agency says sexual orientation discrimination is a form of sex discrimination.

The EEOC even reached a $202,200 settlement — one of the first of its kind — with an employer, IFCO Systems, in exchange for the EEOC to drop its charges of sexual orientation discrimination against IFCO.

And for a while, it appeared as though we were heading toward sexual orientation being official prohibited — either by federal rule making or judicial oversight.

That is, until the Seventh Circuit Court of Appeals ruled that sexual orientation is not covered by Title VII in a recent lawsuit brought by Kimberly Hively against Ivy Tech Community College in South Bend, IN.

What does it all mean

When Hively’s part-time employment contract wasn’t renewed by the college, she filed a claim with the EEOC alleging sexual orientation discrimination. She then filed a lawsuit in federal court.

A trial court dismissed her case, and she appealed. The Seventh Circuit then upheld that appeal. It said sexual orientation discrimination or harassment claims couldn’t be brought under Title VII.

Still, employers would be wise to take the ruling with a grain of salt.

The court said it had no choice to to rule that way since previous rulings by the circuit had said discrimination and harassment based on sexual orientation aren’t covered under Title VII. Essentially, the court said it was bound by its own precedent.

But the court warned that it’s likely only a matter of time before Congress or the Supreme Court act to expand Title VII to protect sexual orientation.

Plus, it reminded employers that nearly half the states in the U.S. have laws that ban sexual orientation discrimination.

Bottom line: With the EEOC already fighting to outlaw discrimination based on sexual orientation, and with Congress and/or the Supreme Court likely to follow suit, employers would be wise to continue to stress equality in their training programs, handbooks and workplaces in general.

Cite: Hively v. Ivy Tech Community College

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