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Seventh Circuit Rules – Title VII Does Not Cover Sexual Orientation

Posted by Eric Kingsley | Aug 22, 2016 | 0 Comments

Employment Law Update Regarding Sexual Orientation Discrimination

Workplace discrimination

The United States Court of Appeals for the Seventh Circuit ruled that Title VII does not protect against sexual orientation discrimination.  The Seventh Circuit ruling is the first by a federal circuit to address the question since the EEOC held in an administrative ruling that bias based on sexual orientation is sex discrimination violating Title VII.  


In Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. July 28, 2016), a part-time adjunct professor alleged that the community college where she taught provided her with a negative performance evaluation and declined to offer her an interview for a full-time position. She professor alleged this decision ultimately resulted in her termination and took place because she was homosexual. In both the district court and on appeal the college argued that the plaintiff had no legal remedy since Title VII does not prohibit discrimination on the basis of sexual orientation.

Seventh Circuit Ruling

While noting that Seventh Circuit precedent clearly supported the district court's dismissal of Hively's claim, the court acknowledged apparent logical contradictions in continuing to construe sexual orientation claims as outside the protections of Title VII while offering those protections to same-sex orientation employees who experience discrimination for failing to conform to gender norms.

As the court explained, “it is exceptionally difficult to distinguish between these two types of claims” because “almost all discrimination on the basis of sexual orientation can be traced back to some form of discrimination on the basis of gender nonconformity.” The court further reasoned that no public policy rationale justified this distinction because “the line between sex discrimination and sexual orientation discrimination … does not exist, save as a lingering and faulty judicial construct.”

The Court then noted that, despite the difficulty in separating sex stereotyping claims from sexual orientation claims, some discrimination claims are themselves discrimination on the basis of sexual orientation rather than on the basis of sex discrimination, such as stereotypes about lifestyle. As such, the Court stated that not all sexual orientation claims are sex stereotyping claims, and thus despite the “unsatisfactory” results and disagreements in district courts, Title VII could not be extended to cover sexual orientation absent further clarification from the Supreme Court.

Sexual Orientation Discrimination

Many states across the country have laws that protect employees from sexual orientation discrimination in the workplace. However, the Seventh Circuit's ruling, and lack of clarity from Congress or the Supreme Court, reveals the lack of standard rights under federal law. More information pertaining to sexual discrimination.

If you are living in Los Angeles, San Francisco, Sacramento, or San Diego and you have questions about sexual orientation discrimination or any of California's employment laws, contact Kingsley & Kingsley to speak with one of our experienced lawyers.

About the Author

Eric Kingsley

In practice since 1996, attorney and firm co-founder Eric B. Kingsley has litigated complex cases and authored numerous appellate briefs in both state and federal court on behalf of the California law firm of Kingsley & Kingsley, including over 150 class actions. Mr. Kingsley concentrates his pra...


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