Employment & Labor Insider

UPDATE (10/14/16): The Hively decision discussed below was issued by a three-judge panel of the Seventh Circuit. This week, the full Seventh Circuit set aside the decision and agreed to rehear the case with all of the judges participating. Here is a copy of the order. 

The U.S. Court of Appeals for the Seventh Circuit decided last week in Hively v. Ivy Tech Community College that sexual orientation discrimination is not prohibited by Title VII, consistent with a long line of appellate court decisions.

The Hively decision is a big deal because it appears to be the first such decision from a federal appeals court since the zeitgeist about LGBT issues changed so dramatically in this country. Most of the decisions on this issue came out before the Supreme Court's decision in Obergefell v. Hodges upholding same-sex marriage as a constitutional right, and before the Equal Employment Opportunity Commission officially took the position in Baldwin v. Foxx that sexual orientation discrimination did violate Title VII.

Hiveley actually engages with the EEOC, acknowledges that the current state of the law doesn't make much sense (currently, according to most courts, discrimination based on gender identity is barred by Title VII as a form of unlawful "sex stereotyping" while preference for members of one's own gender as sexual partners is not), but nonetheless finds that Title VII doesn't protect against sexual orientation discrimination.

At least, not until Congress amends Title VII or the Supreme Court takes a more expansive view of "sex" within the meaning of Title VII.

Judge Ilana Rovner, who wrote the opinion, acknowledges that there isn't much logic to having a constitutional right to "marry who you love" while having no protection from discrimination in the workplace based on who you love. As she put it in her opinion, the current state of the law "create[s] a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act."

Nonetheless, the Seventh Circuit reaffirmed its prior decisions holding that Title VII does not provide protection based on sexual orientation. I think the Court was correct to do so, as a matter of judicial restraint.

First, as I've pointed out before, there is no way that Congress, when it added "sex" as a protected category to Title VII in 1964, was thinking about anything but the "binary" biological sexes of male and female, and not sexual orientation.

Second, as Judge Rovner points out, Congress has had numerous chances to enact the Employment Non-Discrimination Act, which would amend Title VII to include sexual orientation as a protected category. The ENDA was first introduced in 1994, then again in 1995, then in 1997, then 1999, then 2001, then 2002, then 2003, then 2007, then 2009, then 2011, and finally in 2013. It has failed every time, and under Republican and Democratic presidential administrations (Clinton, W, and Obama). And, according to the court, there were attempts to add sexual orientation as a protected category between 1975 and 1982, as well (Ford, Carter, Reagan). "In short," Justice Rovner concludes, "Congress' failure to act to amend Title VII to include sexual orientation is not from want of knowledge of the problem."

Well, you might ask, then why have the courts interpreted "sex" in Title VII to include gender identity? The answer: "Because the Supreme Court said so." In two old cases -- one from 1989 and one from 1998 -- the Court found that discrimination based on sex plus one's failure to conform to gender stereotypes was a form of "sex discrimination" prohibited by Title VII. Thus, a man who is discriminated against because he isn't "masculine" enough has a valid Title VII claim, regardless of his sexual orientation. The same is true for a woman who is discriminated against because she isn't "feminine" enough. Subsequent court decisions have generally found that the principles from these two Supreme Court decisions apply to discrimination based on gender identity.

The EEOC argues that those same principles should also apply to "LGB" individuals.

Justice Rovner was simply saying was that, until Congress or the Supreme Court acts, the U.S. Courts of Appeal don't have the authority on their own to overturn 20-plus years of legal precedent and expand Title VII that far.

This same issue is pending before the U.S. Court of Appeals for the Second Circuit, in the case of Christiansen v. Omnicom Group, Inc. (Here's a link to the lower court decision that is being appealed.) That one may be a real donnybrook. Twenty-two organizations have filed amicus (friend of the court) briefs on behalf of the plaintiff/appellant, including the EEOC, the American Civil Liberties Union, the Lambda Legal Defense and Education Fund, and 128 members of Congress. If the Second Circuit disagrees with the Seventh, then the Supreme Court may agree to review the decision to resolve the split in the circuits.

Very interesting issue for us law nerds! But if you're an employer, you don't need to get bogged down in these technicalities. As Jon Hyman of the Ohio Employer's Law Blog said earlier this week - just do the right thing and don't let your employees be discriminated against or harassed because of their sexual orientation.

I think most employers are already doing the right thing. But for the few who are not, you should realize a few things. If you're a federal contractor, you are already prohibited from discriminating against LGBT individuals. Moreover, many state and local fair employment practices laws protect LGBT individuals. Even if you're not a federal contractor, and even if you're in a jurisdiction that doesn't have LGBT protection, your LGBT employees can assert tort claims for workplace harassment -- such as intentional or negligent infliction of emotional distress, negligent hiring/supervision/retention, and (in appropriate cases) assault and battery or false imprisonment.

I've been saying it for 22 years and haven't been right yet . . .  but one of these days there will be a federal law protecting LGBT employees from discrimination. Think how easy it will be to adjust if you've been treating them right all along!