The U.S. Seventh Circuit Court of Appeals has found that sexual orientation is not a protected class under Title VII, which means it’s now in the hands of Congress to take action to change existing law if LGBTQ employees are going to be allowed the right to sue. The other alternative would be for the U.S. Supreme Court to take on this case or one similar and decide differently.
In the Indian case of Hively v. Ivy Tech Community College, the court noted that this was not the first time it had been asked to consider whether Title IV of the Civil Rights Act of 1964 shields workers and provides an avenue for dispute resolution (usually stemming from claims of discrimination against members of the LGBTQ community). However, the court noted that in this case, the court was deciding the matter “in the shadow of criticism from the EEOC,” which alleged the 7th Circuit and others have continued to reflexively declare sexual orientation is not protected under Title VII/
The court noted the Equal Employment Opportunity Commission had questioned the court’s acceptance of cases born of gender non-conformity discrimination, even as it rejected sexual orientation discrimination cases. Even in the face of this criticism, however, the federal appeals court held once again that because the claim was solely for discrimination based on sexual orientation, it was beyond the scope of the statute.
Plaintiff in this employment LGBT discrimination lawsuit filed her case in the U.S. District Court for the Northern District of Indiana after she asserted that, despite having the necessary qualifications, she was passed over for an interview for any of the six full-time positions to which she applied over the course of five years ending in 2014. Further, the existing part-time contract she did have was allegedly not renewed because the staff at the school frowned upon her sexual orientation.
The district court dismissed her claim, finding Title VII is inapplicable to claims of sexual orientation discrimination. She appealed, but the Seventh Circuit affirmed.
Citing two prior cases – Spearman v. Ford Motor Co. and Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., – the court ruled that the legal precedent for this outcome had already been set. The court did say it will be up to Congress to change the law that will include protections for sexual orientation.
Advocates for LGBTQ rights are after Congress members to pass a measure called the Equality Act. This would amend the Civil Rights Act – which includes Title VII – to expressly prohibit discrimination on the basis of one’s sexual orientation or gender identity.
The court held that it was bound by precedent, unless or until lawmakers or the U.S. Supreme Court shifted gears on this issue. Although the EEOC has held that discrimination on the basis of one’s sexual orientation is illegal, whether a person can actually collect damage from a company for it will depend heavily on the decision by the courts and the actions of lawmakers.
It is possible that as other circuits handle similar cases, they may set precedent that is inconsistent with the findings of the Seventh Circuit. In that case, the disparity could result in a request for review by the U.S. Supreme Court.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 949.375.4734.
Hively v. Ivy Tech Community College, July 28, 2016, U.S. Court of Appeals for the Seventh Circuit
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