Is sexual orientation discrimination cognizable under Title VII

Kimberly Hively v. Ivy Tech Community College, Case No. 15-1720 (7th Circuit July 28, 2016).

The 11th Circuit considered what is meant by “race” under Title VII. The case focused on a Black job applicant hired for a call center job, with no direct contact with the public, who was told she would have to cut off her dreadlocks to confirm the job offer. In support of its position, the employer cited a grooming rule that prohibited “excessive hairstyles or unusual colors.” When the job applicant refused to comply, the job offer was retracted. The Equal Employment Opportunity Commission (“EEOC”) maintained that the ban against the job applicant’s distinctively ethnic hairstyle amounted to race discrimination.

Plaintiff, a college instructor, alleged that she was denied promotional opportunities and ultimately terminated, based upon her sexual orientation. In the original panel decision, the Seventh Circuit ruled against the instructor and held that Title VII does not apply to discrimination claims based upon sexual orientation. However, the panel opinion discussed the inherent difficulty of drawing distinctions based upon either “sex stereotyping,” or sexual orientation. For example, if a gay man is harassed at work because co-workers perceive him as being effeminate, the question is whether that discrimination is based upon sex stereotyping or sexual orientation. Guidance adopted by the Equal Employment Opportunity Commission found that Title VII protection extends to claims of sexual orientation discrimination. The EEOC found that sexual orientation discrimination constitutes sex discrimination because employers could discriminate against gay, lesbian or transgender employees, based upon who they date or marry. The EEOC also determined that sexual orientation discrimination was a form of sex stereotyping discrimination. In accordance with the EEOC guidance, other courts have found that sexual orientation discrimination is cognizable under Title VII. See, Winstead, Langford v. Lafayette Board of County Commissioners, Case No. 16-cv-00054 (N.D. Florida September 20, 2016). The instructor in Hively, has requested that the Seventh Circuit hear her case en banc, and it is anticipated that the Supreme Court will address this issue in the future, given the prospect of different determinations by circuit courts of appeal.

Representation for either plaintiffs or defendants in employment law cases involving wage and hour issues; and matters pertaining to allegations of age, race, sex, natural origin, religious or disability discrimination.

If you have questions related to sexual orientation discrimination call Mark J. Berkowitz P.A. at (954) 527-0570 for assistance.