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Is Big Change Coming To The Landscape Of Employment Law?

On Behalf of | May 3, 2017 | Employment Law

On our website, we discuss the nature of “at will” employment which makes terminating an employee legal so long as the decision is not made because of the employee’s age, race, gender, national origin, religion, because they are pregnant, or because they have a disability. These are referred to as Protected Classes. With a recent ruling from the Seventh Circuit Court of Appeals in Chicago, sexual orientation may soon be added to the list of Protected Classes.

Background Facts

In 2009, Kimberly Hively’s girlfriend dropped her off outside of the Ivy Tech Community College where she had been a teacher for eight years. Before going into the building, Ms. Hively gave her girlfriend a kiss goodbye. Later that day, she would receive a call from the school’s administration office and be reminded to be professional. Apparently, someone had reported the goodbye kiss. After this incident, Ms. Hively would apply for numerous positions within the school, but despite her exemplary employment file, never got any of them. Ultimately, her contract was not renewed. In 2013, she filed a Charge of Discrimination with the Equal Employment Opportunity Commission claiming that she was terminated on the basis of her sexual orientation.

Legal Landscape at the Time Ms. Hively Filed Her Charge

At the time Ms. Hively filed her Charge, the bulk of case law concerning discrimination on the basis of sexual orientation was adverse to her. In fact, every circuit court of appeals, including the 7th Circuit, which examined the issue ruled that sexual orientation was not a Protected Class for employment discrimination purposes. Other circuits have also held that sexual orientation discrimination is not actionable under Title VII. See, e.g., Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999) (“Title VII does not proscribe harassment simply because of sexual orientation.”); Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000) (“Simonton has alleged that he was discriminated against not because he was a man, but because of his sexual orientation. Such a claim remains non-cognizable under Title VII.”); Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001) (“Title VII does not prohibit discrimination based on sexual orientation.”); Wrightson v. Pizza Hut of Am., 99 F.3d 138, 143 (4th Cir. 1996), abrogated on other grounds by Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998) (“Title VII does not afford a cause of action for discrimination based upon sexual orientation . . . .”); Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006) (“[S]exual orientation is not a prohibited basis for discriminatory acts under Title VII.”); Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 704 (7th Cir. 2000) (“[H]arassment 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.”); Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989) (“Title VII does not prohibit discrimination against homosexuals.”); Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1063-64 (9th Cir. 2002) (“[A]n employee’s sexual orientation is irrelevant for purposes of Title VII. It neither provides nor precludes a cause of action for sexual harassment. That the harasser is, or may be, motivated by hostility based on sexual orientation is similarly irrelevant, and neither provides nor precludes a cause of action.”); Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005) (“Title VII’s protections, however, do not extend to harassment due to a person’s sexuality . . . . Congress has repeatedly rejected legislation that would have extended Title VII to cover sexual orientation.”) (internal quotations omitted).


In 2015, the Equal Employment Opportunity Commission, the federal agency charged with investigating and pursuing instances of employment discrimination ruled that discrimination on the basis of sexual orientation was unlawful. This decision was based on two theories. The first and simplest reason was because the Supreme Court has already ruled that discrimination based on sexual stereotyping was already illegal. Therefore, when an employer discriminated against a gay or lesbian employee, they were doing so because of their sex and the failure to fit into typical gender roles. The second basis was that such discrimination was associational on the basis of sex. Stated another way, since the employer did not like that one of his male employees was dating another male, a decision terminating this employee was clearly based on his sex.

The legal landscape shifted even further in June of 2015, when the Supreme Court ruled in Obergefell v. Hodges, that gay marriage was legal in the United States.


In issuing its April 4th decision, and reversing its prior decisions to the contrary, the Seventh Circuit Court of Appeals became the highest court in the country to determine that gay and lesbian works have the right to sue for discriminatory employment practices which occur on the basis of their sexual orientation. In making its ruling, the Seventh Circuit looked to recent and related Supreme Court cases and agreed that but for her gender, Hively would have been kept on staff. Specifically, the Seventh Circuit looked to a 1989 Supreme Court case, Price Waterhouse, which determined that discrimination based on sexual stereotypes is actionable and the fact that Hively is a lesbian makes her “the ultimate case of failure to conform to the female stereotype.” The Court also looked to the Supreme Court’s 1967 ruling in Loving v. Virginia, which found that laws barring intermarriage of different races were illegal. Changing the race of one partner in the marriage would change the legality of the union, the court found, which the Seventh Circuit said was parallel to Hively’s situation.


This case – and in a larger sense, the employment rights of gay and lesbian individuals – seems destined to reach the Supreme Court. The Supreme Court will typically not examine a case like this until there is a disagreement among the various circuit courts of appeal on the outcome of similar cases. The Seventh Circuit gave the Supreme Court that conflict.