In its July 28, 2016 opinion in Hively v. Ivy Tech Community College, No. 15-1720, the Seventh Circuit Court of Appeals followed precedent in determining that Title VII of the Civil Rights Act of 1964 (“Title VII”) did not protect an employee claiming that she was discriminated against based on sexual orientation. While the Seventh Circuit first decided this issue in 1984 in Ulane v. Easter Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984), its decision in Hively is noteworthy because it post-dates the Equal Employment Opportunity Commission’s (“EEOC”) recent 2015 decision, which concluded that “sexual orientation is inherently a ‘sex-based’ consideration” and therefore claims of sexual orientation discrimination are cognizable under Title VII. While the EEOC is the federal agency responsible for enforcing Title VII, its decisions are entitled to some deference but are not binding on courts.
Ultimately, the Seventh Circuit has felt bound by the plain language of Title VII, which “does not redress sexual orientation.” Thus, the Seventh Circuit (like many of its sister circuits) has left it to the Legislature to remedy the omission of sexual orientation from Title VII protections. As such, we are left with what the Hively court articulated as “an odd state of affairs in the law in which Title VII protects gay, lesbian, and bisexual people, but frequently only to the extent that those plaintiffs meet society’s stereotypical norms about how gay men or lesbian women look or act—i.e. that gay men tend to behave in effeminate ways and lesbian women have masculine mannerisms. By contrast, lesbian, gay or bisexual people who otherwise conform to gender stereotyped norms in dress and mannerisms mostly lost their claims for sex discrimination under Title VII.”
Stay tuned on this issue as more cases involving the distinction between sexual orientation and gender non-conformity in the context of Title VII are being considered by courts across the country.