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Sexual Orientation Discrimination Vs Sex Discrimination

Most people understand that there is a distinct difference between sex and sexual orientation. One is a biological marker of visible characteristics, while the other is an invisible characteristic that many believe to be genetic, though science has not yet proven this. However, sometimes sexual orientation will become a factor in discrimination perpetuated ostensibly on account of someone’s sex or gender. It is important to keep that fact in mind, especially when sexual orientation is not considered protected under employment discrimination laws in South Carolina (and many other states).

The Hively Case

Generally speaking, there seems to be a shift in many federal circuits toward recognizing that sexual orientation discrimination is about gender roles at its heart. In many cases, men or women are being punished for a failure to conform to society’s mainstream gender roles. The litmus test is to ask if the circumstances would have been identical if the gender of the complainant was changed—and more and more, courts are finding that the answer is no.

A very recent example is the April 2017 decision of the 7th Circuit ruling in Hively v. Ivy Tech Community College, which was an appeal from a dismissal of an employment discrimination claim against Ivy Tech Community College (IVCC) in Indiana. Hively charged that she was being denied promotions and full-time employment on the basis of her sexual orientation. IVCC replied arguing that sexual orientation was not a ground under which Hively was entitled to bring suit, and the district court affirmed. However, the 7th Circuit reversed, holding that Hively was entitled to a trial on the merits, because at the heart of the matter, Hively was being punished for being a woman who did not conform to societal expectations. She identified as a lesbian, yet the situation may have been dramatically different if she had a different gender.

What Does This Mean In South Carolina?

In terms of precedential value, Hively has very little to a South Carolina plaintiff who is trying to mount an employment discrimination claim under state law, because it comes from the 7th Circuit. South Carolina is part of the 4th Circuit. However, the South Carolina Human Affairs Law does stipulate that LGBTQ+ people may bring claims of alleged discrimination on this basis, echoing the reasoning in Hively that sex discrimination claims may be of the type where “adverse actions [were] taken because of the person’s non-conformance with sex-stereotypes.”

At the federal level, the case will cause more comment and is more likely to be relied upon, especially by bodies like the Equal Employment Opportunity Commission (EEOC) whose mission is to protect the rights of the average person. However, it is important to keep in mind that a decision in one circuit may be overturned by the Supreme Court. Given the continuing debate over the scope of protections, the Court may decide to grant certiorari (that is, hear the case). If you think you may have a discrimination case that falls under Title VII, and it is based on sex or sexual orientation discrimination, it is generally a good idea to put its prosecution into motion as soon as possible.

Ask An Employment Discrimination Lawyer

Cases like Hively can be the difference between prevailing in your discrimination case and being sent away with nothing. If you believe you have been unfairly targeted or discriminated against due to any characteristic covered under Title VII, a good attorney is essential. Attorney A. Christopher Potts and his Charleston employment discrimination law firm are happy to help you get through your case, and will fight for the best possible outcome.

Contact us today to set up an initial appointment.

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