LGBT Protections in the Workplace

On Tuesday, April 4th, 2017, the 7th Circuit Court of Appeals held that workplace discrimination based on sexual orientation violates Title VII of the 1964 Civil Rights Act.[1] According to the complaint, Kimberly Hively, an openly lesbian, part-time, adjunct professor at Ivy Tech Community College, applied for a full-time position at least six times over the span of five years and was denied each time.[2] In the fifth year, her part-time contract was denied renewal as well.[3] The U.S. District Court for the Northern District of Illinois granted Ivy Tech’s motion to dismiss pursuant to controlling law providing that sexual orientation is not a protected class under Title VII, and Hively appealed.[4] However, the 7th Circuit, upon rehearing the case following its initial affirmation of the District Court ruling, held that discrimination on the basis of sexual orientation violated Title VII.[5] This ruling is the first by a federal appeals court to recognize the law as protecting the rights of LGBTQ employees.[6]

Writing for the majority, Chief Judge Diane P. Wood, likened the case to claims brought by women who were rejected for jobs in traditionally male workplaces such as the police department, fire department, construction industry, etc.[7] Employers in those cases were policing boundaries of what jobs and behavior they found acceptable for a woman.[8] These kinds of practices are often characterized as discrimination based on gender non-conformity, which most courts have already found to violate Title VII.

As the Chicago-based 7th Circuit is considered relatively conservative, this ruling carries particular significance. Though this ruling is consistent with the official position of the EEOC[9], this ruling sharply contrasts that of other conservative courts which have held that workplace discrimination based on sexual orientation is not protected under Title VII. Unlike the 7th Circuit in Hively, in Evans v. Georgia Reg’l Hosp., 850 F.3d 1248, 1250 (11th Cir. 2017), the Atlanta-based 11th Circuit distinguished discrimination based on sexual orientation from discrimination based on gender non-conformity, finding that there must be two separate and distinct claims for relief.[10] As circuit courts seem to be split on this issue, the Supreme Court is likely to grant certiorari should the case be presented to them. It will be interesting to observe how federal courts rule on cases regarding LGBTQ workplace rights in the interim.

In light of this legal development, employers, as always, should ensure that they are creating a respectful and inclusive environment for all employees. Employers can take several steps to ensure they are compliant with Title VII standards going forward. Best practices include reviewing and updating organizational policies to make them more inclusive for all employees, updating diversity training practices and making them more frequent, as well as protecting employee privacy only asking employees to disclose private information on a need-to-know basis.

~Author: Aaron Ruffin, 2017 Gate City Bar Summer Associate, The George Washington University Law School, 2nd year Law Student

[1] Hively v. Ivy Tech Cmty. Coll. of Indiana, 853 F.3d 339, 341 (7th Cir. 2017).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] LGBT Employees Protected By Federal Civil Rights Act, Appeals Court Rules NPR, http://www.npr.org/sections/thetwo-way/2017/04/05/522670604/lgbt-employees-protected-by-federal-law-appeals-court-rules (last visited Jun 25, 2017).

[7] Hively at 346.

[8] Id.

[9] See Complainant, EEOC DOC 0120133080, 2015 WL 4397641, at *10 (July 16, 2015).

[10] Evans 850 F.3d 1248 at 1250.