In a landmark decision earlier today the Seventh Circuit Court of Appeals ruled that prohibition on sex discrimination in Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination in the workplace. The Seventh Circuit is the first federal appellate court to make such a ruling. The 8-3 decision, prohibiting employment discrimination on the basis of sexual orientation, becomes binding precedent in Wisconsin, Illinois and Indiana, the states in the circuit, and can only be overruled by the United States Supreme Court.
The Plaintiff, Kimberly Hively, worked as a part-time adjunct professor at Ivy Tech Community College. After she applied for and was denied at least six full time positions and her part-time employment contract was not renewed, she filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging that she was discriminated against on the basis of her sexual orientation. When the EEOC issued a Right to Sue letter, she filed her claim in federal court. Her case was promptly dismissed as failing to state a claim upon which relief may be granted. Most courts have held, including a recent decision by the Second Circuit Court of Appeals, that Title VII does not prohibit sexual orientation discrimination.
Ms. Hively did not have an employee rights attorney representing her. If she had, it is likely that this landmark decision would never have been issued. Most employment discrimination attorneys would have framed the case as sex discrimination based upon nonconformity to gender stereotypes, a claim that even the United States Supreme Court has recognized as covered under Title VII. Today, the Court addressed the gender nonconformity issue, stating “Our panel described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all.”
The dismissal of Ms. Hively’s case had previously been affirmed by a three-judge panel in the Seventh Circuit but, in a rare ruling, the Seventh Circuit decided to vacate that ruling and rehear the case en banc (before all 11 judges in the circuit). Today, the majority opinion held that “Any discomfort, disapproval, or job decision based on the fact that the complainant—woman or man— dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.”
While this decision is a major victory for employees, as a Milwaukee Employment Attorney, I would note that Wisconsin Employees have been protected from sexual orientation discrimination in the workplace prior to this decision. The Wisconsin Fair Employment expressly prohibits discrimination based on sexual orientation. Nevertheless, this decision opens the door to allowing victimized employees the ability to recover remedies of compensatory and punitive damages which, sadly, are unavailable under Wisconsin Law.