In a victory for those fighting against employment discrimination, on April 4th the Court of Appeals for the 7th Circuit held that sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 includes discrimination based on sexual orientation. The 7th Circuit is the first federal appellate court to make this determination. Initially, the case, Hively v. Ivy Tech Community College, was heard before a panel of three appellate judges. At the time, the panel found that based on precedent sexual orientation discrimination was not included in the prohibition against sex discrimination. However, the panel stated in its opinion that this precedent could be overruled by a full court. At rehearing, the full court then determined that the previous precedent was outdated. The court looked at two issues - first, whether the plaintiff, a lesbian woman, would have been treated differently if she were a male married to a woman, (the comparative method) and secondly, if she was treated differently because she was intimately associated with someone of the same sex, (the association method). The association method is often used to show race discrimination.
The court also used as supporting evidence other recent developments including the EEOC statement that sexual orientation discrimination under Title VII is sex discrimination. Additionally, it cited favorably three recent Supreme Court decisions concerning fundamental civil liberties which have found that sexual orientation is an improper basis for discrimination. Because this issue is not well settled in the courts, it is likely that the United States Supreme Court will consider this matter in the near future.
For more information, or for a confidential consultation, please contact our experienced Atlanta employment discrimination team at Buckley Beal, LLP for an immediate appointment.