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Landmark Ruling on Sexual Orientation Discrimination

In early August, the Seventh Circuit Court of Appeals decided the case of Hively v. Ivy Tech Community College (2016). In its opinion, the court held that Title VII did not apply to sexual orientation discrimination, which is at odds with many court decisions and rulings of the Equal Employment Opportunity Commission (EEOC) in recent years. While this ruling does not necessitate an immediate shift in thinking on the subject of sexual orientation discrimination, it does mean that advocates may have to push for other methods to redress mistreatment of LGBTQ people.

Sexual Orientation Discrimination in the Workplace: The Opinion

This ruling is the first major case in federal court applying to sexual orientation discrimination since Obergefell legalized same-sex marriage nationwide. The opinion states that while Title VII does cover discrimination based on gender identity, since it is related to sex discrimination, it does not cover mistreatment based on sexual orientation. According to the Seventh Court, if someone is mistreated for not being “masculine enough” or “feminine enough,” that is discrimination based on their gender or lack thereof; however, in the opinion of the court, sexual orientation does not necessarily have any relation to gender.

The issuing judge does acknowledge the awkwardness and seeming paradox of guaranteeing marriage rights for all while not having any mechanism in place to prevent LGBTQ people from being terminated for their sexuality. However, the court stresses that their opinion is not meant to be homophobic, per se. Rather, according to the judge, the court’s decision merely underlines that it is not the job of the courts to redefine discrimination in the workplace (or ‘gender’ or ‘sex,’ for that matter). That job is left to Congress. The Seventh Circuit conjectures that it is reasonable to assume Congress did not intend anything but the standard gender binary when establishing civil rights law in the 1960s, simply because anything outside that gender binary was all but unheard of at the time.

If You Have Experienced Sexual Orientation Discrimination in the Workplace

It is important to understand that while previously the EEOC held that sexual orientation did violate Title VII in Baldwin v. Foxx, this does not mean that federal courts will do so. An EEOC holding is not judicial precedent in the same manner as a court opinion. It may be a piece of evidence used in an advisory capacity, to help judges formulate their arguments, but it is not dispositive on its own. Conversely, however, an EEOC ruling may not violate the law.

All this withstanding, however, you may still have recourse if you believe that you have been a victim of sexual orientation discrimination in the workplace. You can bring a civil suit against your former employer—just not for wrongful termination. Examples of potential suits that may be brought include intentional infliction of emotional distress, negligent hiring or supervision, and in extreme cases, false imprisonment or civil assault.

Get Help from a Charleston, SC Employment Discrimination Attorney

This ruling may be allowed to stand, or it may eventually be taken up by the Supreme Court. As of this writing, there are similar cases pending in other circuits, and a Supreme Court opinion may be required to adjudicate any split. Either way, if you believe you have been a victim of sexual orientation discrimination in the workplace, you still may have a case. Attorney A. Christopher Potts and the other Charleston, SC employment discrimination attorneys at the firm of Hitchcock & Potts are happy to discuss your options with you.

Contact us today for a free consultation on your case.


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