On July 28, 2016, the Seventh Circuit U.S. Court of Appeals affirmed a decision from the United States District Court for the Northern District of Indiana, holding that Title VII does not prohibit sexual orientation discrimination. Kimberly Hively v. Ivy Tech Community College, No. 3:14-CV-1791, 2015 U.S. Dist. LEXIS 25813, at *1 (N.D. Ind. Mar. 3, 2015), aff’d by 2016 U.S. App. LEXIS 13746, No. 15-1720 (7th Cir. July 28, 2016).
In December 2013, a teacher at Ivy Tech Community College filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) claiming that she had been discriminated against on the basis of sexual orientation in violation of Title VII. After exhausting her administrative remedies, she filed a Complaint with the United States District Court for the Northern District of Indiana, South Bend Division. Ivy Tech moved to dismiss the Complaint, arguing that sexual orientation is not a protected class—that is, it cannot form the basis of an employment discrimination claim. The trial court agreed and granted Ivy Tech’s motion with little analysis and by relying on prior precedent from the Seventh Circuit holding that sexual orientation is not a protected class under Title VII.
On appeal, the Seventh Circuit affirmed. The Court discussed its prior opinions in Hammer v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 704 (7th Circ. 2000), and Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000), which made clear that “harassment based solely upon a person’s sexual preference or orientation (and not on one’s sex) is not an unlawful employment practice under Title VII.” Both cases relied on a 1984 decision in which the Seventh Circuit stated that “homosexuals and transvestites do not enjoy Title VII protection.” The court concluded that Congress had a narrow view of “sex” in mind when it passed the Civil Rights Act and had nothing more than the traditional notion of “sex” in mind when it voted to outlaw sex discrimination. Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984). In other words, “sex” is meant only to mean “gender,” not sexual preference.
More recent opinions from the Seventh Circuit have confirmed this holding. See Muhammad v. Caterpillar, Inc., 767 F.3d 694, 697 (7th Cir. 2014) (holding that the Title VII prohibition on discrimination based on “sex” extends only to discrimination based on a person’s gender, and not that aimed at a person’s sexual orientation); Hamm...
