Earlier this month, the Seventh Circuit Court of Appeals decided Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. Apr. 4, 2017), a case in which an openly-lesbian part-time adjunct professor alleged that she was being blocked from full-time employment with Ivy Tech because of her sexual orientation in violation of Title VII.

On its face, the statute does not include sexual orientation, but prohibits only discrimination on the basis of “race, color, religion, sex, or national origin.” See e.g. 42 U.S.C. § 2000e–2(a). Thus, the district court granted Ivy Tech’s motion to dismiss Hively’s suit because sexual orientation is not a protected class under Title VII.

The Seventh Circuit acknowledged that it was not within the scope of its power to amend Title VII to add a new protected category. However, this case did call the Court to decide what it meant to discriminate on the basis of sex, and whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex. To do so, the Court looked to Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), where the Court held that although Title VII was not initially enacted to address the evil of male-on-male sexual harassment, it was appropriate to apply the statute’s protection to “reasonably comparable evils” such as that. Id. at 79-80. The Court went on to conclude that it “would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.'” Hively, at 20. Thus, protection from discrimination on the basis of sexual orientation does not require the creation of a new category; it is a form of sex discrimination. 

If you have been following the ever-expanding area of sexual orientation/gender identity law, a question has already popped into your head, and the Court anticipated that and answered: in this case, it did not consider whether gender discrimination is a subset of sex discrimination, and has left that question for another time. As an aside, the Court noted that many courts are currently using the terms “gender” and “sex” synonymously. These terms are not the same, however, and I suspect that will become an issue in a new case in the not-too-distant future. “Sex” typically refers to the biological distinctions (e.g., genitalia); “gender” refers the way in which people view themselves. That is, as an example, a person with a penis may be male in sex, but may identify as being a woman in gender.

Tell me about your policies – were you already including sexual orientation in the categories of people protected under your EEO/anti-discrimination policies?