Cook County Record

Monday, December 9, 2019

7th Circ. LGBT Title VII sex discrimination decision puts employers on notice; SCOTUS to ultimately decide

By Nicholas Gueguen | Apr 12, 2017

Discrimination 05

In the wake of a recent decision by a federal appeals court in Chicago, employers will no longer be able to necessarily be able to seek refuge in existing federal civil rights law against discrimination claims brought by gay, lesbian or transgendered employees, as the federal appeals judges said federal prohibitions against sex discrimination should be stretched to include those who fall under the LGBT banner, upsetting decades of established precedent on that question.

But the question over whether the courts will be allowed to reinterpret the law, or whether Congress will need to act to change the law, will likely ultimately need to be settled by the U.S. Supreme Court, said a lawyer following the case.

The U.S. Court of Appeals for the Seventh Circuit decided April 4 in Kimberly Hively v. Ivy Tech Community College of Indiana that discriminating because of a person's sexual orientation qualifies as sex discrimination.

Attorney J. William Manuel, who specializes in employment litigation at the Jackson, Miss., office of the firm of Bradley Arant Boult Cummings, told the Cook County Record  the Seventh Circuit decision "essentially went in a completely opposite direction from almost every other circuit," but for the San Francisco-based Ninth Circuit Court of Appeals.

"The Ninth Circuit, you can usually expect is always a little bit more on the cutting edge, they think, of the law," Manuel said of the San Francisco court. "But the Seventh Circuit, this is one that a lot of people are watching."

The case arose when, according to the Seventh Circuit Court's decision, Hively took up a pro se charge with the U.S. Equal Employment Opportunity Commission in December 2013, after she learned Indianapolis-based Ivy Tech did not renew her part-time adjunct professor contract in July 2014, and after Hively had not been chosen for "at least six full-time positions between 2009 and 2014." The Seventh Circuit Court wrote in its decision that Hively took up the charge against the school because she believed the school was discriminating against her because she is a lesbian.

She alleged school's action violated her rights under Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex.

Ivy Tech responded with a motion to dismiss, arguing Hively did not have viable claim, as Title VII protected only against discrimination on the basis of whether someone was male or female, and did not include protections for sexual orientation. The district court ruled in favor of the school and dismissed the case, prompting her to appeal.

Manuel said he didn't know the reasoning behind the Seventh Circuit Court's decision.

"Especially since the Second Circuit and the 11th Circuit, literally within the last three weeks, found completely the opposite," Manuel said. 

Manuel said those decisions were based on the U.S. Supreme Court's 1979 Price Waterhouse decision, which "said if you have a gender stereotyping claim, if you say Bill doesn't act like we think a man ought to act, and so, therefore, we're not going to promote him, or Sue doesn't act like we think a female ought to act, so we are going to fire Sue - the Supreme Court said that is gender discrimination."

Manuel said most cases involving complaints of discrimination involving transgender or sexual orientation issues fall under that category.

"And so, most circuits say we don't have to make the decision about sexual orientation because they also have a gender-stereotyping claim in the complaint," Manuel said, "and so, therefore, we can say, yeah, you can go forward with your case, you just can't go forward with it only because you're a lesbian or only because you're gay."

Manuel called the Seventh Circuit's decision "much bolder."

"The Seventh Circuit decided to take a much bolder stand and say we are going to recognize that we think sexual orientation is connected to sex," Manuel said. "It's not like the case itself presented anything absolutely unique or unusual. I think it was just probably that those Seventh Circuit justices decided that they were going to go the other way."

Manuel noted a three-judge panel at the Seventh Circuit originally decided like "all the other circuits" did, backing the lower court's decision in favor of the school. However, that decision was reversed when the full Seventh Circuit Appeals Court heard the case en banc.

Manuel said he did not know if the school intended to appeal this decision. But he predicted the Supreme Court will eventually settle the matter.

"From the plaintiff's side, they're going to say the attitudes about sexual orientation have changed so much that we do believe it ought to be a protected class," Manuel said. "And then, on the other side, they're going to say, well, that's not for the courts to decide. If it really has changed, then leave it to Congress to change the law."

Manuel said the decision should not apply to religious organizations, as Title VII already included an exemption for religious employers.

But he said other employers should take note, particularly if they are located within the Seventh Circuit, which includes the states of Illinois, Wisconsin and Indiana.

"You can expect you're going to get a whole lot of other plaintiffs and a whole lot of other defendants," Manuel said. "In their other cases, they're going to say because there's now a split in the circuits, the U.S. Supreme Court needs to decide it."

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Organizations in this Story

Ivy Tech Community College-Central OfficeBradley Arant Boult Cummings LLPU.S. Court of Appeals for the Seventh Circuit