The Ivy Tech Decision Puts Sexual Orientation Discrimination Back on the Table, Right? WRONG!

Hively v Ivy Tech Community College
Click the photo for the full text of the Seventh Circuit’s decision in Hively v. Ivy Tech Community College

On July 28, 2016, the Seventh Circuit Court of Appeals ruled that Title VII of the Civil Rights Act of 1964 does not protect employees from discrimination based on their sexual orientation. However, if you manage a business with more than 15 employees, you should essentially ignore this ruling. Here are a few quick reasons why:

  • The decision came from the Seventh Circuit, which includes Illinois, Indiana, and Wisconsin. If you are not in one of these states, there is no guaranty the decision will apply to you.
  • While the decision holds that discrimination based on “sexual orientation” is not covered by Title VII, the Seventh Circuit hinted that discrimination based on “gender stereotypes” would be covered. This gives future plaintiffs an avenue to plead essentially the same claim but achieve a different result.
  • The EEOC will continue enforcing Title VII as if it prevents discrimination based on sexual orientation, regardless of what the Seventh Circuit says. This is true for a couple of reasons:
    1. The EEOC is an administrative agency supervised by the President. Based on Executive Order 13672, President Obama’s agenda clearly includes the elimination of discrimination based on sexual orientation and gender identity.
    2. Similar appeals are currently pending before the Eleventh and Second Circuits. If one of those Courts rules differently from the Seventh Circuit, this would create a “circuit split,” which may fast track this issue for Supreme Court review. Regardless, the EEOC will continue advocating its interpretation of Title VII until all possible appeals are resolved.
  • The Seventh Circuit’s decision in Ivy Tech does not change the rules which are being applied to federal government contractors, who must obey Executive Order 13672. The Executive Order prohibits discrimination based on gender identity and sexual orientation. Violation of the Order could result in the loss of your government contract.
  • Even the Seventh Circuit did not like the politics of its own decision. Specifically, the Court said:

Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it, (see Baldwin, 2015 WL 4397641 at **5,10); many of the federal courts to consider the matter have stated that they do not condone it (see, e.g., Vickers, 453 F.3d at 764‐65; Bibby, 260 F.3d at 265; Simonton, 232 F.3d at 35; Higgins, 194 F.3d at 259; Rene, 243 F.3d at 1209, (Hug, J., dissenting); Kay, 142 F. Appʹx at 51; Silva, 2000 WL 525573, at *1); and this court undoubtedly does not condone it (see Ulane, 742 F.2d at 1084). But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent, and therefore, the decision of the district court is AFFIRMED.

Obviously the political winds are shifting on this issue. The law may be slow to catch up, but it seems like an inevitability. Regardless, wise businesses will continue to enforce anti-discrimination policies that forbid discrimination on the basis of sexual orientation and gender identity.

Please feel free to contact us if you would like a review or revision of your anti-discrimination / anti-harassment policy, or would like to schedule training of your managers. (470) 839-3900.

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