On April 4, 2017, the United States Court of Appeals for the 7th Circuit (which includes Illinois, Wisconsin, and Indiana) reversed a lower court decision by finding that sexual orientation discrimination is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. The case of Hively v. Ivy Tech Community College of Indiana marks the first time a federal appeals courts has determined that sexual orientation is a protected subcategory of “sex” under Title VII. In fact, in March of 2017 the 2nd Circuit and 11th Circuit courts, respectively, each issued opinions holding that sexual orientation—in and of itself–is not protected under Title VII as a form of sex discrimination. There is now a split among federal Circuit Courts which will eventually lead to the Supreme Court addressing the issue directly.
In Hively, the case involved Plaintiff Kimberly Hively, a part-time adjunct professor at Ivy Tech Community College’s South Bend Campus. Ms. Hively is openly lesbian and was initially hired by Ivy Tech for a part-time position in 2000. Between 2009 and 2014, Hively applied for six full-time positions, but was unsuccessful each time. Moreover, in 2014, she was notified that her part-time contract would not be renewed. Hively believed that she was not selected for a full-time position because of sexual orientation discrimination and filed an action against Ivy Tech.
In its ruling, the 7th Circuit acknowledged that it was not within the Court’s power to “amend” Title VII to include sexual orientation. Rather, the Court viewed whether sexual orientation is a “subset category” of sex under Title VII as a matter of statutory interpretation, which is well within the Court’s scope of authority. Further, the Court noted that the recent opinions of the 2nd and 11th Circuit acknowledged in their decisions that they were constrained by precedent, but that each court should consider revisiting the issue of sexual orientation discrimination with the appropriate case.
The 7th Circuit’s Hively decision does not directly impact employers operating in Pennsylvania as we reside in the 3rd Circuit. While the issue of sexual orientation under Title VII is not settled among the courts, the EEOC considers sexual orientation and gender identity forms of sex, and are therefore protected from discrimination for purposes of its administrative investigations. Accordingly, we continue to recommend that Pennsylvania employers maintain equal employment opportunity policies that prohibit harassment, discrimination and/or retaliation on the basis of sexual orientation.