On Thursday, the United States Court of Appeals for the Seventh Circuit re-affirmed prior court holdings that Title VII of the Civil Rights Act does not prohibit discrimination based on sexual orientation, but in so doing pointedly criticized the current state of the law. In Hively v. Ivy Tech Community College, the court held that absent a Supreme Court opinion or new legislation broadening the protection of Title VII, it was constrained to hold that Title VII did not prohibit sexual orientation discrimination, yet went on to note that “[i]t 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.”

In Hively, the plaintiff was a part-time adjunct professor at Ivy Tech Community College who complained that the College blocked her full-time employment on the basis of her sexual orientation. The federal district court in Indiana dismissed the lawsuit prior to any discovery, holding that Title VII does not prohibit sexual orientation discrimination. The Seventh Circuit reluctantly affirmed this decision.

After first explaining that the court was bound to follow prior precedent which held that Title VII does not cover sexual orientation discrimination, the Hively decision then reviewed the paradoxical state of the law in which discrimination based on sex stereotyping (for example, disciplining a woman for wearing pants) is “sex” discrimination prohibited by Title VII, but discrimination based on sexual orientation is not. The court puzzled at being left “with a body of law that values the wearing of pants and earrings over marriage.” The court went on to explain that “neither the proponents nor the opponents of protecting employees from sexual orientation discrimination would be satisfied with a body of case law that protects ‘flamboyant’ gay men and ‘butch’ lesbians but not the lesbian or gay employee who act and appear straight.”

In recent years, the EEOC has taken the position that discrimination against LGBT individuals is a form of discrimination based on “sex stereotypes” that is prohibited under the reasoning of the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 242 (1989). In Price Waterhouse, the Court held that a female executive was subjected to unlawful sex discrimination when she was told that in order to receive a promotion she needed to walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry, because she was punished for failing to conform to stereotypical views of how a woman should behave. The EEOC has held within the federal sector that Title VII explicitly prohibits sexual orientation discrimination by federal government agencies and in March filed complaints against two private sector employers for discriminating against employees based on sexual orientation.

Notably, the Seventh Circuit spent the bulk of the Hively decision analyzing the paradoxical and at times illogical distinction between prohibited “sex stereotyping” and non-prohibited sexual orientation discrimination that lower courts have grappled with since Price Waterhouse. Ultimately, however, the court concluded that even though these prior decisions reflected an “illogical” legal structure, the court was bound by its prior precedent. As Judge Ilana Diamond Rovner, who authored the opinion, wrote for the majority that perhaps the “writing is on the wall” in terms of a change in the paradoxical legal situation. “But writing on the wall is not enough. Until that writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent,” Judge Rovner wrote. The court therefore affirmed dismissal of the case.

While the federal appellate courts have consistently held that Title VII does not provide redress for sexual orientation discrimination, many states and localities have statutes prohibiting discrimination on this basis. In Illinois, for example, the Illinois Human Rights Act, as well as numerous county and municipal laws, prohibits discrimination based on sexual orientation. Accordingly, employers should review their anti-discrimination policies and practices to ensure that they comply with all applicable laws.