Earlier this week, the Seventh Circuit Court of Appeals held in Hively v. Ivy Tech Community College that Title VII does not protect employees or offer redress for discrimination based on sexual orientation.  As a result, discrimination against an employee based solely on sexual orientation is not prohibited by federal law, while discrimination against an employee based on gender non-conformity claims is prohibited.

On motions to dismiss, the panel affirmed the district court's dismissal of Hively's Title VII claims, which asserted Ivy Community College denied her a full time position and promotions because of her sexual orientation.  Noting that the "writing is on the wall" for a change in federal law, the panel ruled it was bound by circuit precedent that made clear, "harassment based solely upon a person's sexual preference or orientation . . . is not an unlawful employment practice under Title VII."  Moreover, Congress repeatedly rejected legislation that would have extended Title VII to cover sexual orientation. 

The panel joined the EEOC in criticizing the practical effect of its own ruling.  The panel explained that courts have had limited success trying to figure out how to draw the line between gender norm discrimination and sexual orientation claims. Courts have gone about this task in two different ways: by disallowing any claims where sexual orientation and gender non-conformity are intertwined, or by trying to separate the claims and focus only on the gender stereotype allegations.  The panel found that the opinions tend to turn circles around themselves because it is extremely difficult to disentangle these claims.  Nonetheless, the panel acknowledged while it may be difficult to separate these claims, it is not impossible.  Thus, the Seventh Circuit will continue to extricate gender nonconformity claims from sexual orientation claims.

What this ruling means for employers:

For now, employees have no recourse for discrimination based on sexual orientation under Title VII.  Most employees have no recourse whatsoever, unless they happen to live in a state with an anti-discrimination statute that includes sexual orientation.  However, more than half of the United States does not have such state protections.

Additionally, the Seventh Circuit may be correct in stating that the "writing is on the wall" for a change in federal law.  The Equality Act, which is currently pending, would add sexual orientation and gender identity as protected categories under federal civil rights laws precluding discrimination in public accommodations, education, housing, and employment. Moreover, the Second and Eleventh Circuits are each considering the same issue presented in Hively.  Should one of the circuits hold the other way, chances are the Supreme Court will step in and determine the proper interpretation of the word "sex" under Title VII.