On April 4, the Seventh Circuit became the first federal court in the United States to extend protections under the Civil Rights Act of 1964 to cover employment discrimination based on sexual orientation. The ruling in Kimberly Hively v. Ivy Tech Community College marks a significant milestone for all LGBT workers. It also means employers should review their policies and procedures to ensure they do not violate this broader interpretation of Title VII.
Judges Call Narrow Title VII Definition “Arbitrary” and “Silly”
In 2009, someone allegedly reported Kimberly Hively, an adjunct instructor at Ivy Tech Community College, for kissing her girlfriend in their car as she was being dropped off for work. An administrator took the step of phoning her at home to remind her of her duty to appear professional at all times. For several years after, Hively was passed over for full-time teaching positions, despite having a longer tenure and being more qualified than those who were hired. Hively’s hours were then cut and she was subsequently not hired back at all.
Hively, who now teaches high school math, filed suit in 2014. The lower court initially denied her case because it said Title VII did not apply to sexual orientation. Hively appealed to the Seventh Circuit. In a very rare move, the court agreed to hear the case en banc – meaning before its entire panel of judges.
During arguments, the judges seemed to take a dim view of Ivy Tech’s argument that Title VII only bars discrimination based on gender, not sexual orientation. Hively argued the discrimination she faced was about gender – the discrimination she allegedly suffered came after she was seen kissing a woman, and not a man, in the parking lot.
U.S. Circuit Judge David Hamilton seemed to agree with Hively. At one point, he asked Ivy Tech’s counsel “How do courts draw the line you want us to draw without sounding arbitrary and, occasionally, silly?”
The majority of the bench apparently agreed with Hamilton’s assessment as the court ruled 8-3 in support of extending Title VII protections to include sexual orientation.
In her majority opinion, Chief Circuit Judge Diane P. Wood referenced recent Supreme Court rulings, “common sense,” and wrote “it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex” and that “the time has come to overrule our previous cases that have endeavored to find and observe that line.”
A Victory for LGBT Rights and a Message to Employers
The Seventh Circuit decision in Hively is a landmark moment in the history of LGBT rights in the United States, on par with the Supreme Court’s marriage equality ruling in Obergefell. It is a significant step forward to ensuring equal treatment for all workers regardless of sexual orientation.
Hively is also a signal to employers that change is coming soon on this issue. The Seventh Circuit ruling is not immediately the law of the land, and it has created a split with other federal courts, who differ on their interpretation.
What Hively has proven, however, is that this is a valid cause of action when it comes to employers accused of discriminating against employees based on their sexual orientation. And, as with anything in the compliance realm, preparation is vastly less expensive than protracted litigation.
Employers should review their existing policies and procedures in light of Hively to ensure they address discrimination based on sexual orientation. This includes:
- Removing any language from job applications that asks – either directly or indirectly – about an applicant’s sexual orientation, marital status, etc.
- Refraining completely from any questions about an applicant’s sexual orientation during all interviews.
- Ensuring promotions are based entirely on objective benchmarks such as qualifications, tenure, and merit.
- Having straightforward policies regarding disciplining employees for infractions to ensure LGBT workers are not treated more harshly for similar offenses.
- Ensuring an employee who comes out as LGBT at work, or is transitioning, is not demoted or terminated for that reason.
- Maintaining a respectful, safe workplace that is free from discrimination and harassment against LGBT employees by colleagues and superiors – and ensuring swift, consistent action is taken if this occurs.
If you are unsure about how to take these steps, often a conversation with an experienced employment lawyer can help to address any potential issues before they become problems.
Decisions such as Hively are a good first step to ensuring equality in the workplace. For their part, all employers must follow applicable federal and state employment statutes – and that includes updating policies and procedures as this area of law evolves.