April 14, 2017

Sexual orientation is now a protected class in the workplace

In a landmark opinion, the Seventh Circuit became the first federal appellate court in the country to extend the protections on the basis of sexual orientation.

Sexual Orientation Now Protected Class in the Workplace Until April 4, 2017, it was lawful under federal law for an employer to discriminate against its employees on the basis of sexual orientation.  (It was already unlawful under state law).  But on April 4, the Seventh Circuit, the federal court of appeals for the area that includes Wisconsin, Illinois and Indiana, ruled that Title VII prohibits discrimination on the basis of sexual orientation, because that type of discrimination is simply a subset of sex discrimination, which is explicitly forbidden by Title VII.

Title VII prohibits an employer from mistreating an employee because that employee belongs to a protected class, such as race or gender (“sex” is the term the statute uses).  In Hively v. Ivy Tech, the plaintiff-employee, Hively, alleged that her employer, Ivy Tech, denied her several promotions because she is a lesbian.  Hively lost in the trial court, and appealed to the Seventh Circuit.

The Seventh Circuit reversed the trial court in a landmark decision.  The Seventh Circuit ruled that discrimination on the basis of sexual orientation was simply a version of sex discrimination.  It reasoned that if Hively had been a man who was attracted to or had intimate relationships with women, Ivy Tech would not have engaged in discrimination.  So, it was Hively’s membership in the protected class of gender (she is a woman) that was the determinative factor in the discrimination.  Thus, her claim was covered by Title VII, even though Title VII does not include “sexual orientation” as a protected class.

Procedurally, Hively did not yet win her case.  Her case is back in the trial court, where Ivy Tech now has an opportunity to disprove Hively’s allegations.  (Ivy Tech denies that it discriminated against her on the basis of her sexual orientation or gender).  Ivy Tech also has the opportunity to appeal the decision to the United States Supreme Court, which is likely given the current state of the law.

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