A hot topic in the last couple of years is whether sexual orientation is protected under current employment law statutes. Title VII of the Civil Rights Act of 1964 is the preeminent federal anti-discrimination employment law. As written, the law applies to discrimination on the basis of race, color, religion, sex, and national origin. In the past, Congress has considered adding sexual orientation as a protected class, but these bills have stalled in Congress. Recently, however, the issue has come up another way: can Title VII, as it already exists, be read to protect against discrimination on the basis of sexual orientation?
This was the question before the Court in Hively v. Ivy Tech Community College. We previously reported that a panel of the 7th Circuit Court of Appeals had refused to read in sexual orientation protection into Title VII of the Civil Rights Act. At the end of last year, the 7th Circuit decided to rehear the case en banc, this time, allowing the entire Court to weigh in on the question. After the entire Court heard the case, earlier this month, a majority of the Court decided to reverse course and hold that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII.
Discrimination on the Basis of Sexual Orientation: A New Interpretation for a New Era
Title VII’s text does not specifically list sexual orientation as a protected class under that statute. However, a majority of the judges on the Court of Appeals concluded that such protection exists. How did they reach this conclusion?
First, the Court framed the question before them as one of simple statutory interpretation: what does it mean to discriminate on the basis of sex? Is sexual orientation discrimination just a subset of discrimination on the basis of sex?
To answer these questions, the Court first pointed out that Supreme Court precedent supported the idea that just because the enacting Congress may not have anticipated a particular application of Title VII does not mean that such application is foreclosed. This conclusion opened the door for the Court to take a fresh look at what it means to discriminate on the basis of sex, despite the argument that the legislators who enacted Title VII did not mean to include sexual orientation in that definition.
Unrestrained by what the Congress who passed the law meant when it sought to protect against sex discrimination, the Court quickly concluded that sexual orientation discrimination was sex discrimination under Title VII. The Court justified its holding in a few ways.
What Does This Mean for Your Organization or Business?
Right now, the 7th Circuit’s opinion only directly affects employment discrimination claims in that jurisdiction (Illinois, Indiana, Wisconsin). There, if Title VII applies to your organization or business (and most likely it does), discriminating on the basis of sexual orientation will be treated just like discrimination on the basis of sex.
While this decision is confined to the 7th Circuit, it may not be long before other courts in other jurisdictions decide to follow suit. The decision is persuasive authority and will likely be used to argue that other circuits should reconsider their own settled precedent. In addition, the EEOC has already been arguing in other courts that this outcome should be the result nationwide. It is also important to remember that Title VII is not the only basis for employment discrimination protection. Most states have their own version of employment anti-discrimination laws, and many of those laws specifically include sexual orientation as a protected class. For example, in Colorado, the state anti-discrimination in employment law already provides this protection.
Businesses should make sure they comply with whatever laws apply to them. Religious organizations will continue to be able to assert whatever religious defenses they may have in making employment decisions, but need to review their policies to make sure they have correctly provided for these defenses. It remains to be seen whether protection based on sexual orientation will lead to the types of clashes in employment that have been seen in challenges involving state public accommodation statutes.
While this case is not going to be appealed to the Supreme Court because the college has decided not to pursue appeal, the issue is likely to continue to arise in cases around the country and may make its way to the high court in the near future. In the meantime, businesses and organizations should pay careful attention to what laws apply and what requirements must be followed.