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Northwest OH Legal Blog

Wednesday, May 31, 2017

Federal Court of Appeals Affirms Prohibition against Employment Discrimination Based on Sexual Orientation

In a landmark decision issued on April 4, 2017, the United States Court of Appeals for the Seventh Circuit held in Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (en banc), that discrimination in employment based on a person’s sexual orientation is prohibited by Title VII of the Civil Rights Act of 1964 (“Civil Rights Act”). In particular, the Court of Appeals held that discrimination on the basis of sexual orientation is a form of unlawful sex discrimination.

Background.  Kimberly Hively, an openly gay individual, brought a Title VII sex discrimination claim against her former employer.  In her complaint, Hively alleged that her employer had failed to promote her and had failed to renew her teaching contract because she is a lesbian.  The United States District Court for the Northern District of Indiana dismissed Hively’s case, citing Seventh Circuit precedent that sexual orientation is not protected under Title VII.

Ruling by Court of Appeals.  A three-member panel of the Seventh Circuit affirmed the lower court’s dismissal on the basis of past precedent.  However, the Seventh Circuit then took the unusual step of reconsidering the decision en banc, which means that all of the active Seventh Circuit judges participated in reconsidering the decision of the three-member panel. In an 8 to 3 decision, the en banc panel voted to overrule past precedent and find that a person’s sexual orientation is protected by Title VII.

 

In reaching this conclusion, the Seventh Circuit expressly reserved for a different case whether or when religious institutions may make employment decisions based on sexual orientation. The Seventh Circuit also expressed no opinion on the propriety of considering sexual orientation when an employee is providing social or public services.

 

Takeaways.  The Seventh Circuit is the first federal appellate court in the United States to hold that sexual orientation is protected by Title VII of the Civil Rights Act.  Prior to the court’s ruling in Hively, every other federal court of appeals had declined to find that sexual orientation is protected by Title VII.  Most recently, in March 2017, the Eleventh Circuit expressly declined to recognize sexual orientation as being protected by Title VII.  Now that there is a split among the various federal courts of appeal on this issue, the United States Supreme Court may agree to hear the case and resolve the split by issuing a definitive ruling on the sexual orientation issue.

State Law Considerations.  At this time, the Seventh Circuit’s extension of Title VII’s protections to sexual orientation applies in Illinois, Indiana and Wisconsin only.  Despite this limitation on the court’s ruling, it is noteworthy that many, but not all, states and localities prohibit bias in hiring, promotion, job assignment, termination, and compensation, as well as harassment on the basis of one’s sexual orientation. Fewer states extend those protections to cover sexual identity.  Ohio prohibits discrimination on the basis of sexual orientation, but only with respect to state employment.  Indiana prohibits discrimination on the basis of sexual orientation with respect to all employment.  Discrimination on the basis of sexual identity, however, is recognized only with respect to state employment.

If you have any questions or concerns regarding this communication, please do not hesitate to call Allotta | Farley Co., L.P.A. at (419) 535-0075 or email megarner@allottafarley.com.


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With offices in Toledo and Lima, OH Allotta Farley Co., L.P.A. serves clients throughout northwest OH with various legal matters. Areas of service include Allen County, Ashland County, Auglaize County, Crawford County, Defiance County, Erie County, Fulton County, Hancock County, Hardin County, Henry County, Huron County, Lucas County, Marion County, Mercer County, Morrow County, Ottawa County, Paulding County, Putnam County, Richland County, Sandusky County, Seneca County, Van Wert County, Williams County, Wood County, Wyandot County.

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