In April, the 7th Circuit Court of Appeals, which has jurisdiction over Illinois, Indiana and Wisconsin, issued a groundbreaking judicial ruling in Hively v. Ivy Tech Community College of Indiana (Ivy Tech). In the decision, stemming from a suit by an adjunct professor for the college (Kimberly Hively), whose contract had not been renewed in 2014, the court ruled that sexual orientation claims are actionable under Title VII of the Civil Rights Act of 1964.
This ruling follows an administrative decision by the Equal Employment Opportunity Commission (EEOC), issued in July 2016 in response to a different suit, Baldwin v. Foxx. There, the EEOC stated, “Sexual orientation is inherently a ‘sex-based consideration’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”
Absent the overturning of Hively v. Ivy Tech, employers in Illinois, Indiana and Wisconsin will need to ensure fair and equal treatment to all job applicants and company personnel regardless of their sexual orientation.
The 7th Circuit Court took a stance, stated in the opinion, that “discrimination on the basis of sexual orientation is a form of discrimination” and that it “would require considerable calisthenics” to remove the “sex” from “sexual orientation” when applying Title VII. Furthermore, the court determined, efforts to do so had led to contradictory or ambiguous results.
Now that the 7th Circuit Court of Appeals has affirmed the EEOC decision, other courts may issue similar rulings. At the minimum, it underscores employer responsibility under Title VII to protect LGBT employees in Illinois, Indiana and Wisconsin and broadens considerably the class of individuals who can seek relief for alleged employment discrimination and retaliation.
The U.S. has entered a period of unpredictability for employment law, with many high courts that are liberal leaning, a President whose executive orders are often conservative, and a Congress that appears to fluctuate between the two stances. Absent the overturning of Hively v. Ivy Tech, employers in Illinois, Indiana and Wisconsin will need to ensure fair and equal treatment to all job applicants and company personnel regardless of their sexual orientation.
This may require extra effort for Indiana firms which, unlike Wisconsin and Illinois, currently have no state laws against such discrimination. Based upon this decision, employers should consider a full review of hiring, discipline and discharge investigations, policies and procedures, including policies for negative hiring action, personnel behavior, and more. To read more about this decision and the background of the case that spurred it, we refer you to the Court of Appeals ruling.