In July 2015, the EEOC officially took the position that sexual orientation claims may be brought under the non-discrimination provisions of Title VII of the Civil Rights Act of 1964. However, in the recent case of Hively v. Ivy Tech Community College, the Seventh Circuit refused to accept the EEOC’s position and affirmed the dismissal of a sexual orientation discrimination claim holding that such claims are not cognizable under Title VII.

Following the United States Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, federal courts have consistently recognized sexual stereotype or gender non-conformity claims as a species of sex discrimination prohibited by Title VII.  There, the Court recognized that the anti-discrimination protections of Title VII protect employees who do not conform to stereotypes regarding their gender.

In the ensuing years, the EEOC seized upon the logic of Price Waterhouse in asserting that sexual orientation discrimination claims similarly fall under the sex discrimination claim rubric.  According to the EEOC, these types of claims are based on sex because a complaint alleging that an employer “took his or her sexual orientation into account in an employment action necessarily alleges that the [employer] took his or her sex into account,” because they are a form of discrimination based on gender stereotypes, and because they are a form of associational discrimination on the basis of sex. Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641, at *5-8 (July 16, 2015).

In reviewing the dismissal of Hively’s sexual orientation claim, the Seventh Circuit noted that it was compelled to affirm the dismissal based on its prior precedent dating to 2000 which held that sexual orientation claims are not cognizable under Title VII. However, given the EEOC’s recent announcement regarding it position on the issue, the court felt compelled to analyze its rationale for so holding.

In doing so, the court noted that Congress has “repeatedly rejected” legislation that would have extended Title VII’s protections to sexual orientation. The court also noted that Congress has failed to amend Title VII in light of the emerging judicial consensus that workplace discrimination based on sexual orientation “can no longer be tolerated.”  The court further noted that the line between a gender stereotype claim and a sexual orientation claim is difficult, if not impossible, to draw and that such efforts often lead to “odd results.”  However, the court ultimately concluded that under Title VII in its current form, it is a line that must continue to be drawn by courts when facing such cases, an approach leads to the “paradoxical legal landscape which a person can be married on Saturday and then fired on Monday for just that act.”

The Hively decision is clearly a rebuke to the EEOC’s efforts to expand the protections of Title VII without Congressional action.  Moreover, given the current composition of the United States Supreme Court, it appears unlikely that employers will receive any definitive guidance in the short term as to the viability of these claims.  However, it also seems clear that the EEOC will continue to assert its position on sexual orientation claims absent Supreme Court or Congressional action.  As a result, employers should be prepared to defend against these types of claims at an administrative level, at a minimum.

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