Federal Court Rules Against “Gay Bias” in Title VII Claim

On July 28, 2016, the Seventh Circuit Court of Appeals (which covers the states of Indiana, Illinois, and Wisconsin) rejected the Equal Employment Opportunity Commission’s administrative ruling that argued discrimination based on sexual orientation is discrimination “based on sex” and thus violates Title VII of the Civil Rights of 1964. Hively v. Ivy Tech Cmty. Coll. (7th Cir. 2016).

The three-judge panel cited a “long line of precedent” from other previously decided cases within the Seventh Circuit that have not recognized claims of “anti-gay bias” under Title VII. The court also noted that Congress has yet to amend Title VII to specifically grant protection to workers from sexual-orientation bias.

The decision does, however, recognize that “changing workplace norms” and a “changing legal landscape” are underway. The decision closes by stating that “perhaps the writing is on the wall … [b]ut writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent … .”

MSEC recently published a Bulletin article titled, What is Discrimination ‘Because of Sex’? by Mary Helen Matthews, which contains a more in-depth look at this emerging issue. MSEC will continue to follow this issue closely.