[author: Matt Feinberg]
Matt Feinberg
On April 4, 2017, the United States Court of Appeals for the Seventh Circuit ruled that a part-time math instructor at Ivy Tech Community College in Indiana could sue her former employer under Title VII of the Civil Rights Act of 1964 for failing to promote, then terminating, her because she is a lesbian. Title VII protects an individual from discrimination in employment based on that individual’s “race, color, sex, or national origin,” but it does not specifically delineate that members of the LGBTQ community are members of a protected class.
The 8-3 decision of the en banc panel in Hively v. Ivy Tech Community College of Indiana, stands in direct contrast to the decisions of every other Circuit Court of Appeals which has considered whether sexual orientation discrimination is prohibited by the statute. It is likely the decision sets up an opportunity for the Supreme Court to decide the issue on a grander scale within the next eighteen months. The Hively ruling currently applies only to states within the Seventh Circuit, i.e. Wisconsin, Illinois, and Indiana. However, the landmark nature of the decision has received widespread publicity, encouraging individuals across the country to seek similar decisions from courts closer to home.
The Hively case will, of course, have the greatest immediate impact on private corporations in Wisconsin, Illinois, and Indiana. If you operate a business or employ workers in those states, you are now subject to the Hively ruling and to the protections it extends to your employees. We encourage our clients in those states to immediately update all internal and public non-discrimination policies and disciplinary procedures to reflect the newly-expanded scope of Title VII.
Although the O.F.C.C.P. Rules already prohibit government contractors from engaging in workplace discrimination based on an employee’s sexual orientation, we anticipate that the Hively decision will bring additional publicity to these existing employment protections, potentially leading to increased claim-filing by employees.
We therefore encourage all of our clients, no matter where they employ workers, to address allegations of workplace discrimination and harassment based on sexual orientation, gender identity, gender non-conformity, and gender variance with particular care given the Hively decision. Employers should consider updating handbooks and employee manuals and training managers and supervisors on applying existing investigation protocols to claims of sexual orientation discrimination. Until the Supreme Court has an opportunity to consider the question answered in Hively, large and small companies alike, whether they operate privately or in the public sector, are vulnerable to potential allegations and claims of discrimination based on sexual orientation. Even if unfounded, these claims can damage a company’s standing in the community and have a heavy impact on the business’ bottom line.
