In Hively v. Ivy Tech Community College, 2016 WL 4039703 (7th Cir. July 28, 2016), the court held that Title VII of the Civil Rights Act (Title VII) does not encompass claims for sex discrimination based on sexual orientation. According to the court, despite the 2015 Equal Employment Opportunity Commission (EEOC) decision in Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 16, 2015) (concluding that "sexual orientation is necessarily an allegation of sex discrimination under Title VII"), the court was bound by its own precedent that the Title VII’s prohibition of "sex" discrimination extends only to discrimination based on a person's gender and not that aimed at a person’s sexual orientation. However, the court acknowledged that it is becoming difficult to continue to distinguish between "gender non-conformity discrimination" (also referred to as sex stereotype discrimination), which is cognizable under Title VII, and sexual orientation discrimination, which is not.

Background

Plaintiff Kimberly Hively, who had worked as a part-time adjunct professor at Ivy Tech Community College since 2000, claimed that the College denied full-time employment and promotions based on her sexual orientation in violation of Title VII. In its defense, the College argued that Title VII does not apply to claims of sexual orientation discrimination.

Gender Non-Conformity Discrimination vs. Sexual Orientation Discrimination

In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court held that Title VII protects employees who fail to comply with typical gender stereotypes or live up to gender norms, i.e., that Title VII prohibits discrimination against a male employee who acts too feminine, or a female employee who acts too masculine.

In Hively, the court explained that, based on Price Waterhouse, a distinction has developed between gender non-conformity claims and sexual orientation claims. In short, claims from employees who are gay, lesbian, bisexual or transgender could be successful if the employees carefully culled out the gender non-conformity discrimination from the sexual orientation discrimination; however, the court observed that the distinction is exceedingly difficult to find; if not nonexistent.

Impact of the Hively Decision

The Hively court is clear that it does not condone sexual orientation discrimination. It goes so far as to state that perhaps the rationale used to distinguish gender non-conformity discrimination claims from sexual orientation discrimination claims "will not hold up under future rigorous analysis." However, the court acknowledged that to date, the Supreme Court has remained silent on this question, and Congress has repeatedly refused to add sexual orientation to the list of Title VII protected classifications. Thus, the court concluded that until one of those two things change, it must adhere to its prior precedent that Title VII does not encompass sexual orientation discrimination.

This is the first Circuit court to rule on the issue since the EEOC’s July 2015 Baldwin decision. Nonetheless, the Hively decision is binding only within the Seventh Circuit, so the EEOC will likely continue to press its Baldwin rationale in other Circuits.