EMPLOYMENT DISCRIMINATION BASED ON SEXUAL ORIENTATION PROHIBITED
June 18th, 2017 | Lars H. Anderson
It began in 2009 when someone reported seeing Ivy Tech Community College adjunct professor Kimberly Hively kiss her girlfriend goodbye in a car in the campus parking lot. The next day, Hively received a phone call at home from a college administrator, who reminded Hively of her duty to “appear professional at all times”.
In the following five years, Hively was not granted full-time status despite multiple applications. She was let go in 2014 after working at the college since 2000. Hively sued the community college in 2013, claiming that she was "denied full time employment and promotions based on sexual orientation" in violation of Title VII of the Civil Rights Act of 1964.
Hively filed her action in the U.S. District Court for the Northern District of Indiana. Ivy Tech responded with a motion to dismiss for failure to state a claim on which relief can be granted. It argued that sexual orientation is not a protected class under Title VII (or 42 U.S.C. § 1981). Title VII prohibits employment discrimination based on race, color, religion, sex and national origin. But it doesn’t expressly prohibit discrimination on the basis of sexual orientation. The District Court granted Ivy Tech’s motion and dismissed Hively’s case with prejudice.
Hively appealed the District Court’s dismissal to the Seventh Circuit Court (Illinois, Indiana and Wisconsin), which initially affirmed the District Court’s dismissal of Hively’s complaint. Subsequently, the Seventh Circuit granted Hively’s request for an en banc hearing.
The U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that administers and enforces civil rights laws against workplace discrimination, filed a brief in support of Hively. In a 2015 federal sector decision, the EEOC determined that sexual orientation discrimination is, by its very nature, discrimination because of sex. Attorney Gail Coleman of the commission posed a few questions to the court: "If this employee's sex were different, would the employer object to their relationship with this other person? If this employee were a man with a picture of his wife on his desk, would that be OK whereas if this employee were a woman with a picture with her wife, that's not OK? If her sex was different, would she be treated differently?"
The Seventh Circuit cited several relevant Supreme Court cases in support of the argument that “discrimination on the basis of sexual orientation is a form of sex discrimination”. The cases included Loving v. Virginia, Price Waterhouse v. Hopkins, and Obergefell v. Hodges. In Loving, the Supreme Court ruled that discrimination on the basis of the race with whom a person associates is a form of racial discrimination. Price Waterhouse held that the practice of gender stereotyping falls within Title VII’s prohibition against sex discrimination. In Obergefell, the Supreme Court recognized that the Due Process and Equal Protection Clauses of the Constitution protect the right of same-sex couples to marry.
The Seventh Circuit noted that “in the years since 1964, Title VII has been understood to cover far more than the simple decision of an employer not to hire a woman for Job A, or a man for Job B.” The Court concluded that “Any discomfort, disapproval, or job decision based on the fact that the complainant – woman or man – dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex. That means that it falls within Title VII’s prohibition against sex discrimination.”
On April 4, 2017, the Seventh Circuit reversed the District Court’s dismissal of Hively’s suit against Ivy Tech and remanded the case for further proceedings.
The Seventh Circuit ruling is not the law of the land, and it has created a split with other federal courts, who differ on their interpretation. The Eleventh Circuit held as recently as March 2017 that discrimination on the basis of an employee’s sexual orientation is not prohibited under Title VII of the Civil Rights Act. The issue is likely to be resolved by the U.S. Supreme Court.
While there is no federal statute explicitly addressing employment discrimination based on sexual orientation, some twenty states and the District of Columbia, as well as several hundred municipalities (counties and cities) have laws that prohibit such discrimination.
Pennsylvania prohibits employment discrimination based on sexual orientation and gender identity, but that prohibition only covers state employment. It does not apply to private sector employment.
Lars H. Anderson, Employment Lawyer at HKQ Law reminds employers of the importance of staying in compliance with ever-evolving employment discrimination laws. “We can help review your policies and procedures, and address any potential issues before they become problems.” If you need assistance, call HKQ Law for your consultation at 570-287-3000, or visit hkqlaw.com.