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to Section One | to Arts & Entertainment
posted Friday, July 29, 2016 - Volume 44 Issue 31
Title VII does not protect sexual orientation, 7th Circuit says

Reverses EEOC ruling
Section One
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Title VII does not protect sexual orientation, 7th Circuit says

Reverses EEOC ruling

by Mike Andrew - SGN Staff Writer

A three-judge panel of the 7th Circuit Court of Appeals ruled on July 28 that Title VII of the Civil Rights Act of 1964 does not protect sexual orientation.

In doing so, the court reversed a 2015 Equal Employment Opportunity Commission (EEOC) ruling supporting Kimberly Hively against her then-employer.

The EEOC had ruled that Title VII's prohibition on discrimination on account of sex also extended to sexual orientation, but the 7th Circuit found that 'Kimberly Hively has failed to state a claim under Title VII [of the Civil Rights Act of 1964] for sex discrimination&her claim is solely for sexual orientation discrimination, which is beyond the scope of the statute.'

Judge Ilana Rovner wrote in the majority opinion that 'the idea that the line between gender-nonconformity and sexual orientation claims is arbitrary and unhelpful has been smoldering for some time, but the EEOC's decision ... threw fuel on the flames.'

According to Rovner, the EEOC's position is logical but not supported by existing legal precedent.

'It seems illogical to entertain gender-nonconformity claims under Title VII where the nonconformity involves style of dress or manner of speaking, but not when the gender-nonconformity involves the sine qua non of gender stereotypes - with whom a person engages in sexual relationships,' she wrote.

'And we can see no rational reason to entertain sex discrimination claims for those who defy gender norms by looking or acting stereotypically gay or lesbian (even if they are not), but not for those who are openly gay but otherwise comply with gender norms.'

Nevertheless, Rovner concluded that the court must comply with its prior decisions, unanimously concluding that sexual orientation discrimination is not barred under Title VII.

Congress has repeatedly rejected legislation to expand protections to include sexual orientation discrimination explicitly, she noted, and the Supreme Court has declined to address the issue.

'Perhaps the writing is on the wall,' Rovner wrote of that change, but she concluded that '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.'

The 7th Circuit has jurisdiction over the states of Wisconsin, Illinois, and Indiana.

A number of federal district court cases - including Hall v. BNSF Railway (2014) in Washington state - have charged Title VII violations based differential treatment of same-sex and opposite-sex spouses, for example in the provision of health care benefits by employers.

In some federal court cases, notably Boutillier v. Hartford Public Schools (2014) and Koren v. Ohio Bell Telephone Co. (2012), federal district courts have ruled that discrimination on the basis of sexual orientation is identical with - or derived from - discrimination on the basis of sex.

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