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Harassment Based on Sexual Orientation is Recognized as a Violation of Title VII

Buckley King's "Straight Answers"

April 7, 2017

Carol K. Metz

When faced with the issue, the United States Circuit Courts have unanimously agreed that Title VII of the Civil Rights Act of 1964's prohibition against sex discrimination excluded discrimination on the basis of a person's sexual orientation. However, earlier this week, the U.S. Court of Appeals for the Seventh Circuit (whose jurisdiction includes Illinois, Indiana and Wisconsin) changed its position. In Hively v. Ivy Tech Community College of Indiana, the Seventh Circuit concluded that discrimination on the basis of sexual orientation is a form of sex discrimination prohibited by Title VII.

When previously faced with this issue, the Seventh Circuit distinguished discrimination based on sexual orientation from sex discrimination, reasoning that the Title VII prohibition against sex discrimination "implies that it is unlawful to discriminate against women because they are women and against men because they are men." This was accepted as settled law across the country, although a few Circuit Courts held that an openly gay plaintiff could assert a discrimination claim based on gender stereotyping. However, drawing the distinction between gender non-conformity claims and sexual orientation claims proved to be difficult.

With the long-standing recognition that discrimination on the basis of the race with whom a person associates is a form of racial discrimination and the recent recognition by the U.S. Supreme Court that Due Process and Equal Protection Clauses of the Constitution protect the rights of same-sex couples to marry, the Seventh Circuit recognized the importance of the issue and reheard the case en banc. The Seventh Circuit made it clear that it was not adding a new protected category to the Title VII protected list of "race, color, religion, sex or national origin" but instead held that actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex.

As employers have the ability to provide rights to employees that are greater than the statutory minimum, and since it is unclear when the remaining Circuit Courts will join the Seventh Circuit in its reasoning, we recommend employers revise their anti-discrimination and anti-harassment policies to expressly include sexual orientation as a protected class status, providing freedom from harassment and discrimination regardless of biology, orientation or identification. In light of the shifting landscape surrounding these claims, educating and training employees on these policies will also help assure that all employees are properly informed of an employer's expectations.

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