We have discussed this in the past. Under federal law, sexual orientation is not a protected class. Thus, under federal law, one cannot file a discrimination charge on the basis of sexual orientation. (There are several states that make sexual orientation a protected class.)
In our discussions on gay marriage, I have argued that the 14th Amendment can be used as the basis for providing protection to homosexuals. I have also argued that Title VII's prohibition against discrimination on the basis of gender could be used to provide protection against discrimination on the basis for sexual orientation.
Last week, the 7th Circuit Court of Appeals agreed with this position and found sexual orientation to be protected under Title VII. The case involved a lesbian adjunct profession at Ivy Tech Community College. She alleged she applied several time for a full time professor position, but was denied because of her sexual orientation. The district court dismissed the suit on the basis that sexual orientation is not a protected class under Title VII.
The 7th Circuit Court of Appeals overturned, becoming the first appellate court in the country to find protection for sexual orientation under Title VII. This will most likely end up before SCOTUS.
Summary:
In seeking en banc review, Hively asked the Seventh Circuit to revisit its precedent, in light of the EEOC’s decision in Baldwin, as well as the dramatic change in Supreme Court jurisprudence regarding the treatment of LGB people, as manifested in the marriage equality decisions.
The Seventh Circuit, in an opinion by Chief Judge Wood, largely adopted the EEOC’s rationale presented in Baldwin. The court found that sexual orientation discrimination was a form of sex stereotyping and thus barred under Title VII. To reach this conclusion, the court applied the “comparative method” approach. The court examined the counterfactual “situation in which Hively is a man, but everything else stays the same: in particular, the sex or gender of the partner.” The court found that Hively’s non-conformity to the female stereotype — that she should have a male partner — was cognizable as sex discrimination under the gender non-conformity line of cases.
The court also adopted Hively’s theory that discrimination based on sexual orientation is sex discrimination under the associational theory. The court examined the application of this line of cases, beginning with Loving v. Virginia, 388 U.S. 1 (1967), and found that the Civil Rights Act prohibits discrimination based on the sex of someone with whom a plaintiff associates. The court noted that it was inapposite that the Loving line of cases dealt with associational race discrimination, rather than sex discrimination.
In reversing its previous precedent such as Hamner, the court noted both the Supreme Court’s recent marriage equality decisions, as well as the EEOC’s action in Baldwin, and stated that “this court sits en banc to consider what the correct rule of law is now in light of the Supreme Court’s authoritative interpretations, not what someone thought it meant one, ten, or twenty years ago.”
The court was unpersuaded by the notion that Congress has not expressly added the phrase “sexual orientation” to the list of protected categories under the Civil Rights Act, while it has used the phrase in other legislation. Instead, the court noted that the “goalposts” of Title VII “have been moving over the years,” but the key concept — “no sex discrimination” — remains.
The Court declined to decide whether there would be an exemption if Ivy Tech were a religious employer, and whether the meaning of discrimination in the context of the provision of social or public services might be the same.
If there are no dogs in Heaven, then when I die I want to go where they went. - Will Rogers
Emery's Third Coast Triathlon | Tri Wisconsin Triathlon Team | Push Endurance | GLWR
In our discussions on gay marriage, I have argued that the 14th Amendment can be used as the basis for providing protection to homosexuals. I have also argued that Title VII's prohibition against discrimination on the basis of gender could be used to provide protection against discrimination on the basis for sexual orientation.
Last week, the 7th Circuit Court of Appeals agreed with this position and found sexual orientation to be protected under Title VII. The case involved a lesbian adjunct profession at Ivy Tech Community College. She alleged she applied several time for a full time professor position, but was denied because of her sexual orientation. The district court dismissed the suit on the basis that sexual orientation is not a protected class under Title VII.
The 7th Circuit Court of Appeals overturned, becoming the first appellate court in the country to find protection for sexual orientation under Title VII. This will most likely end up before SCOTUS.
Summary:
In seeking en banc review, Hively asked the Seventh Circuit to revisit its precedent, in light of the EEOC’s decision in Baldwin, as well as the dramatic change in Supreme Court jurisprudence regarding the treatment of LGB people, as manifested in the marriage equality decisions.
The Seventh Circuit, in an opinion by Chief Judge Wood, largely adopted the EEOC’s rationale presented in Baldwin. The court found that sexual orientation discrimination was a form of sex stereotyping and thus barred under Title VII. To reach this conclusion, the court applied the “comparative method” approach. The court examined the counterfactual “situation in which Hively is a man, but everything else stays the same: in particular, the sex or gender of the partner.” The court found that Hively’s non-conformity to the female stereotype — that she should have a male partner — was cognizable as sex discrimination under the gender non-conformity line of cases.
The court also adopted Hively’s theory that discrimination based on sexual orientation is sex discrimination under the associational theory. The court examined the application of this line of cases, beginning with Loving v. Virginia, 388 U.S. 1 (1967), and found that the Civil Rights Act prohibits discrimination based on the sex of someone with whom a plaintiff associates. The court noted that it was inapposite that the Loving line of cases dealt with associational race discrimination, rather than sex discrimination.
In reversing its previous precedent such as Hamner, the court noted both the Supreme Court’s recent marriage equality decisions, as well as the EEOC’s action in Baldwin, and stated that “this court sits en banc to consider what the correct rule of law is now in light of the Supreme Court’s authoritative interpretations, not what someone thought it meant one, ten, or twenty years ago.”
The court was unpersuaded by the notion that Congress has not expressly added the phrase “sexual orientation” to the list of protected categories under the Civil Rights Act, while it has used the phrase in other legislation. Instead, the court noted that the “goalposts” of Title VII “have been moving over the years,” but the key concept — “no sex discrimination” — remains.
The Court declined to decide whether there would be an exemption if Ivy Tech were a religious employer, and whether the meaning of discrimination in the context of the provision of social or public services might be the same.
If there are no dogs in Heaven, then when I die I want to go where they went. - Will Rogers
Emery's Third Coast Triathlon | Tri Wisconsin Triathlon Team | Push Endurance | GLWR
