The U.S. Court of Appeals for the Seventh Circuit made a landmark en banc decision earlier this month when it declared that Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination based on sexual orientation. With this ruling, and rulings in the Second and Eleventh Circuit courts, it has been suggested that the original case (Hively v. Ivy Tech Community College) will land before the U.S. Supreme Court in due time.
In the Hively case and subsequent court decisions, judges have grappled with the idea of extending Title VII rights to protect gay and lesbian employees from discrimination. Several courts and judges, including the late Antonin Scalia, have noted that while the language in the Civil Rights Act of 1964 may not have specifically prohibited discrimination based on sexual orientation, statutory prohibitions often “go beyond the principal evil to cover reasonably comparable evils”. Discrimination and harassment based on sexual orientation would certainly seem to be comparable to other forms of sexual or gender related discrimination.
The precedent Supreme Court ruling holds that Title VII prohibits gender stereotyping and same-sex harassment, and that combined with prohibitions in the Fourteenth Amendment concerning restricting marriages based on sex or race, that Title VII inexorably forbids discrimination based on sexual orientation. The decision was made by a panel of eight judges, which rested their conclusion on the following three principal theories:
- That discrimination against an individual for his or her sexual orientation is a form of sex stereotyping and therefore is in violation of Title VII.
- That discrimination based on sexual orientation is “paradigmatic sex discrimination” – for example, a woman being discriminated against for being a woman dating a woman, rather than a man dating a woman.
- That discrimination based on sexual orientation is “associational discrimination”, which is in violation of the Fourteenth Amendment.
A Wide Ranging Issue
Several states like New York, California, Massachusetts, and the District of Columbia – along with various jurisdictions across the U.S. – have already created or expanded laws to prohibit discrimination based on sexual orientation. There are also many employers across the U.S. who have adopted company-wide policies prohibiting such discrimination.
Unfortunately, the rulings by the Circuit Courts that seem victorious could all amount to little if the U.S. Supreme Court decides not to uphold the Seventh Circuit Court’s ruling. The wide ranging nature of this issue definitely makes it a case to keep an eye on.