• 7th Circuit Rejects EEOC's Expansion of Title VII to Cover Sexual Orientation and Gender Identity
  • September 16, 2016
  • Law Firm: Shawe Rosenthal LLP - Baltimore Office
  • The U.S. Court of Appeals for the 7th Circuit rejected the Equal Employment Opportunity Commission’s expansion of the definition of “sex” under Title VII to include sexual orientation and gender identity.

    Background: In Hively v. Ivy Tech Community College, a part-time professor sued the college, claiming that she had been denied full-time employment based on her sexual orientation. The federal district court dismissed her claims, finding that sexual orientation is not protected under Title VII.

    The Board’s Ruling: On appeal, the 7th Circuit referenced its own prior cases in which it found that Title VII does not offer protection or remedies for sexual orientation discrimination. The 7th Circuit stated that its rulings are consistent with those from other Circuit courts (all but the 11th Circuit were cited). The 7th Circuit further noted that these rulings reflect the fact that Congress has repeatedly considered but failed to pass legislation that would add sexual orientation to the list of protected categories under Title VII. Thus, the 7th Circuit held that “claims for sexual orientation [discrimination] are not cognizable under Title VII. Nor are they, without more, cognizable as claims for sex discrimination under the same statute.”

    The 7th Circuit went on to address the EEOC’s 2015 decision in Baldwin v. Foxx, in which it first held that sexual orientation discrimination is necessarily sex discrimination because: (1) sexual orientation discrimination involves less favorable treatment on the basis of sex; (2) it is associational discrimination on the basis of sex because of who the employee dates or marries; and (3) it is based on gender stereotypes. The 7th Circuit disagreed that Title VII covers sexual orientation discrimination.

    The 7th Circuit, however, acknowledged that other federal courts are considering the reasoning set forth by the EEOC in Baldwin, and went on to take a fresh look at the issue in light of recent legal developments. It found that discrimination for failure to conform to gender norms (i.e. “sex stereotyping”) may be difficult to distinguish from discrimination on the basis of sexual orientation, and this confusion has led to inconsistent application of Title VII to gender non-conformity claims. It also acknowledged that there has been inconsistency with regard to associational discrimination claims based on sex as opposed to race. The 7th Circuit also discussed the Supreme Court’s decisions involving sexual orientation, up through the most recent decision of Obergefell v. Hodges, in which the Supreme Court held that same-sex couples have the right to marry. As the 7th Circuit noted, however, none of those decisions addressed Title VII.

    The 7th Circuit ended by stating that until there is “Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent” in finding sexual orientation to fall outside the protections of Title VII.

    Lessons Learned: Although the rationale for its decision was straightforward, the 7th Circuit clearly struggled with the philosophical and moral underpinnings, stating,

    Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it, ...many of the federal courts to consider the matter have stated that they do not condone it ... and this court undoubtedly does not condone it.

    Yet, this court and the other federal courts are still - for the moment - bound by their precedents. There is growing support for the idea that sexual orientation discrimination should be prohibited - whether it will be accomplished by Congress by adding it outright to Title VII or through the courts by expanding the definition of “sex” (as the EEOC has already done), remains to be seen.  formity claims. It also acknowledged that there has been inconsistency with regard to associational discrimination claims based on sex as opposed to race. The 7th Circuit also discussed the Supreme Court’s decisions involving sexual orientation, up through the most recent decision of Obergefell v. Hodges, in which the Supreme Court held that same-sex couples have the right to marry. As the 7th Circuit noted, however, none of those decisions addressed Title VII.

    The 7th Circuit ended by stating that until there is “Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent” in finding sexual orientation to fall outside the protections of Title VII.

    Lessons Learned: Although the rationale for its decision was straightforward, the 7th Circuit clearly struggled with the philosophical and moral underpinnings, stating,

    Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it, ...many of the federal courts to consider the matter have stated that they do not condone it ... and this court undoubtedly does not condone it.

    Yet, this court and the other federal courts are still - for the moment - bound by their precedents. There is growing support for the idea that sexual orientation discrimination should be prohibited - whether it will be accomplished by Congress by adding it outright to Title VII or through the courts by expanding the definition of “sex” (as the EEOC has already done), remains to be seen.