Since its passage in 1964, Title VII of the Civil Rights Act has prohibited discrimination in employment on the basis of race, color, religion, sex and national origin. Title VII, which applies to all employers with 15 or more employees, is one of several major United States employment statutes that is enforced by the EEOC. Despite bills such as the Employment Non-Discrimination Act (which has been introduced in Congress repeatedly), Title VII has never been amended to add workplace protections on the basis of sexual orientation or gender identity. Yet gender remains protected, leaving courts in the position of trying to untangle what is gender discrimination versus sexual orientation discrimination.  In a July 2016 decision, Hively v. Ivy Tech Community College, the Seventh Circuit Court of Appeals delved into this sometimes confusing area of the law in detail.

Plaintiff, Kimberly Hively, was a part-time adjunct professor who claimed that the college refused to interview her for various full-time positions because of her sexual orientation. As the court noted, Hively was somewhat different from earlier cases because the EEOC had since taken the position, in its July 2015 opinion Baldwin v. Foxx, that sexual orientation discrimination is inherently a form of sex discrimination, and is therefore always illegal under Title VII. While EEOC decisions are generally not binding on federal courts, the Court seemed to give some deference to the EEOC’s reasoning, observing that the federal district courts—the “front line experimenters in the laboratories of difficult legal questions”—have been questioning the distinction between gender non-conformity and sexual orientation discrimination.

The court went on to discuss a series of decisions highlighting the blurred (and perhaps non-existent) lines between sex stereotyping discrimination and sexual orientation discrimination. The court observed that some opinions have tended to “turn circles around themselves” in trying to make the distinction.  This can also lead to an odd result, with which, the court suspected, neither side of the debate would be satisfied: “flamboyant” gay men and “butch” lesbians enjoying more employment protections than their “cosmetically conforming” counterparts.

In an anti-climactic finish, the Seventh Circuit ultimately held that it was bound by its own precedent to continue to reject sexual orientation discrimination claims, while still allowing gender non-conformity claims. Fortunately for the court, Ms. Hively, who was representing herself pro se, did not include gender non-conformity allegations in her lawsuit.  However, the court’s discussion of the larger issues seems tailor-made for citation in future opinions supporting broader protections for LGBT employees. As for Ms. Hively, her attorneys have filed a petition for a re-hearing before the entire Seventh Circuit which is still awaiting a ruling.

Moving forward, if the legislature were to finally amend Title VII to include “sexual orientation” as a protected class, or if the Supreme Court were to interpret discrimination based on “sex” to include “sexual orientation,” the impact of such a decision would be felt nationwide. This kind of pronouncement would not only impact those who have raised discrimination claims, but could also put pressure on state legislatures that have not banned sexual orientation discrimination.  For now, this type of sweeping change does not seem imminent.

In the meantime, employers should be aware of state and local anti-discrimination laws, such as the New Jersey Law Against Discrimination and the Philadelphia Fair Practices Ordinance, which provide protections against sexual orientation discrimination. Even in the absence of such laws, workplace policies prohibiting discrimination based on sexual orientation and gender identity will serve both to protect employers from liability, and to foster a more inclusive workplace.  Employers who are unsure if their policies and procedures meet state, federal and local guidelines should seek the advice of experienced employment counsel.


Ivo Becica- 3394Ivo Becica focuses his practice on advising employers on how to reduce litigation risk and resolve employee issues, and on defending employers in litigation if necessary. He can be reached at 215-667-6335 or ivo.becica@obermayer.com


Lisa Koblin is an attorney in Obermayer’s Labor Relations and Employment Law Department who focuses her practice on defending employers in litigation matters and providing counseling to resolve employment-related disputes. She can be reached at 215-665-2925 or lisa.koblin@obermayer.com