Harmon & Davies, P.C.

The Seventh Circuit Court of Appeals has rejected the EEOC’s position that Title VII prohibits discrimination on the basis of sexual orientation. The July 28th decision, Hively v. Ivy Tech Community College, is a blow to the EEOC’s recent efforts to stretch Title VII to encompass sexual orientation, a classification that the statute does not mention. The Seventh Circuit based its ruling on the twin columns of statutory interpretation and judicial precedent: the language of Title VII does not explicitly prohibit sexual orientation discrimination and the case law of the Seventh Circuit has repeatedly denied that Title VII implicitly prohibits it either.

But perhaps the better indicator of the future of Title VII is what the court chose to do after briefly explaining its ruling. Rather than criticizing the EEOC for overreaching, it spent the rest of its lengthy opinion performing an extensive, mostly positive analysis of the EEOC’s justification for its position.

This analysis places a large, unofficial asterisk next to the decision, as the court described the very precedent it relied on to reach its decision as, among other things, “inconsistent.” The main source of the court’s consternation is the difficult task of squaring the Supreme Court’s approval of prohibiting gender non-conformity discrimination with its silence in regard to prohibiting sexual orientation discrimination. Gender non-conformity discrimination is discrimination based on a person’s failure to conform to gender stereotypes about how men and women should act. Many, including the EEOC, have argued that failing to be romantically interested in the opposite gender should just be considered a failure to conform to the gender stereotype that men date women and women date men. But because of Title VII and the Supreme Court’s silence in regard to sexual orientation discrimination, federal courts have consistently refused to extend gender non-conformity discrimination to cover sexual orientation discrimination.

The result is, as the court called it, an “odd state of affairs,” in which heterosexual plaintiffs who suffer gender non-conformity discrimination can more easily bring a discrimination claim than homosexual plaintiffs alleging the exact same discrimination, because the homosexual plaintiffs have the extra burden of proving the discrimination is not based on their sexual orientation. The court also found inconsistency in how the law currently would protect a woman from discrimination on the basis of the superficial way she talks or dresses, but not from discrimination on the basis of her (now legal) marriage to a woman. “We are left,” in the Seventh Circuit’s opinion, “with a body of law that values the wearing of pants and earrings over marriage.”

Such a conclusion makes it clear that as much as the Seventh Circuit felt bound by law and precedent to find Title VII does not prohibit sexual orientation, it also felt that the law and precedent should change. It concluded its opinion with a not-so-subtle call for either a change in legislation or a Supreme Court decision on the issue. The Seventh Circuit may not have endorsed the EEOC’s stance, but it certainly urged an institution with more authority to do so. Employers should be aware that it is likely only a matter of time before such an institution does.

This article is intended to provide general information, not a specific legal opinion or advice. Any particular questions should be directed to your legal counsel. If you do not have legal counsel, please feel free to contact Harmon & Davies, P.C.

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