Employers take note: On the heels of the Seventh Circuit landmark and controversial ruling last week that Title VII does, in fact, prohibit sexual orientation discrimination in the workplace, a group of prominent Democratic U.S. Senators and representatives from New Jersey, Oregon, Rhode Island, and Wisconsin have jumped into the fray, attempting to use the decision to convince the courts in other jurisdictions to adopt the same conclusion.By way of background, last week, the Seventh Circuit Court of Appeals became the first federal level appellate court to hold that Title VII does, in fact, prohibit employers from discriminating against an employee based on his/her sexual orientation. In doing so, the Seventh Circuit rejected the contrary conclusions reached by the other Circuit Courts that have addressed this issue, and breathed new life into ongoing efforts in some of those other jurisdictions to persuade their own courts to re-examine their prior rulings.
Specifically, in Hively v. Ivy Tech Community College of Indiana, the Seventh Circuit reversed both the district court decision and its own prior ruling that Title VII does not cover sexual orientation discrimination, and held that although the statutory language does not actually list sexual orientation as a protected trait, it was nevertheless covered by the statute as a form of sex-based discrimination, because “the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.” In essence, the Hively court held that sexual orientation discrimination is the same as traditional sex discrimination because it is rooted in stereotypes about how men and women should conduct themselves.
Prior to the Seventh Circuit’s decision in Hively, every other Circuit Court to address this issue has ruled that sexual orientation discrimination is not actionable under Title VII, including the First, Second, Third, Fourth, Fifth, Sixth Eighth, Ninth, Tenth, and Eleventh. In fact, as recently as last month, a panel of Eleventh Circuit judges reaffirmed this conclusion in Evans v. Georgia Regional Hospital, when it expressly held that “sexual orientation discrimination is not actionable under Title VII” because, in essence, sexual orientation is not included among the list of protected traits identified in the statutory text, and noted that as of March 10, 2017, all of the Circuit Courts were in agreement on this point.
However, that observation was upended only a few weeks later when the Seventh Circuit issued its decision in Hively, effectively creating a “circuit split” on this issue. This disagreement among the federal appellate courts is important for a couple of reasons. First, although the defendants in the Hively matter have indicated that they do not intend to take the case to the U.S. Supreme Court, the very fact that there is now a split increases the likelihood that the Supreme Court will weigh in on this important legal question the next time a case involving this issue reaches its doorstep.
Second, in an interesting turn of events, it is now possible that the plaintiff who actually knocks on the Supreme Court’s door for an answer to this question will be none other than the plaintiff who suffered defeat in the Evans matter just a few weeks ago. This is because shortly after the Eleventh Circuit issued its decision, the plaintiff in that case filed a petition for an en banc review, in which she asked the full appellate court to rethink the panel’s prior decision, and then, earlier this week, a group of prominent democratic U.S. Senators and representatives from four states filed a motion for leave to file a “friend of the court” amicus brief on the plaintiff’s behalf, citing the Hively court’s reasoning as grounds to reconsider the issue while that petition is still pending.
Thus, although the Eleventh Circuit has yet to rule on the plaintiff’s request for an en banc review, it is clear that the Hively decision will be used by litigants and employee-rights groups in those jurisdictions that do not recognize sexual orientation discrimination to push their courts to reconsider the matter. As such, until the Supreme Court weighs in on this issue, employers should be mindful of the Hively decision and its implications for their own employment practices and policies.