In a carefully reasoned but ultimately restrained opinion the Seventh Circuit held that Title VII does not prohibit discrimination in employment on the basis of sexual orientation. While declining to become the first circuit court to extend Title VII to sexual orientation claims, the court acknowledged at length the persuasive force of a recent EEOC administrative decision and similar district court rulings noting the logical fallacy of enforcing Title VII’s protections against discrimination on the basis of gender nonconformity while permitting sexual orientation discrimination in the workplace to continue.

In a carefully reasoned but ultimately restrained opinion the Seventh Circuit held that Title VII does not prohibit discrimination in employment on the basis of sexual orientation. While declining to become the first circuit court to extend Title VII to sexual orientation claims, the court acknowledged at length the persuasive force of a recent EEOC administrative decision and similar district court rulings noting the logical fallacy of enforcing Title VII’s protections against discrimination on the basis of gender nonconformity while permitting sexual orientation discrimination in the workplace to continue.

In Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. July 28, 2016), a part-time adjunct professor alleged that the community college where she taught provided her with a negative performance evaluation and declined to offer her an interview for a full-time position, resulting in her ultimate termination, because she was homosexual.  In both the district court and on appeal the college argued that the plaintiff had no legal remedy since Title VII does not prohibit discrimination on the basis of sexual orientation.

While noting that Seventh Circuit precedent clearly supported the district court’s dismissal of Hively’s claim, the court nevertheless felt compelled to acknowledge apparent logical contradictions in continuing to construe sexual orientation claims as outside the protections of Title VII while offering those protections to same-sex orientation employees who experience discrimination for failing to conform to gender norms.  As the court explained, “it is exceptionally difficult to distinguish between these two types of claims” because “almost all discrimination on the basis of sexual orientation can be traced back to some form of discrimination on the basis of gender nonconformity.”  The court further reasoned that no public policy rationale justified this distinction because “the line between sex discrimination and sexual orientation discrimination … does not exist, save as a lingering and faulty judicial construct.”

Through repeated examples the court explained why the precedent it felt bound to uphold did not withstand logical scrutiny, explaining that “Title VII leaves us with the somewhat odd body of case law that protects a lesbian who faces discrimination because she fails to meet some superficial gender norms – wearing pants instead of dresses, having short hair, not wearing makeup – but not a lesbian who meets cosmetic gender norms, but violates the most essential of gender stereotypes by marrying another woman. We are left with a body of law that values the wearing of pants and earrings over marriage.”

Moreover, the court approved the reasoning underpinning recent decisions from the EEOC and the district courts which refused to construe sexual orientation claims as outside Title VII’s purview, perhaps signaling its expectation in the eventual change of the law.  As the court explained, “the district courts – the laboratories on which the Supreme Court relies to work through cutting-edge legal problems – are beginning to ask whether the sexual orientation-denying emperor of Title VII has no clothes.”

Ultimately, however, the court was unwilling to break new ground.  The court concluded that “[p]erhaps the writing is on the wall” that the inconsistencies in permitting gender nonconformity discrimination claims but not sexual orientation claims would result in the elimination of this artificial boundary over time.  But, as the court explained, “writing on the wall is not enough.  Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent.”

While employees in approximately half of U.S. states are statutorily protected from sexual orientation discrimination in the workplace, it remains unclear whether the Supreme Court, Congress or some other federal circuit will be the first to formally define a similar right under federal law. What is reasonably certain, however, is that employees will continue to challenge sexual orientation discrimination at the federal level and to seek redress from the courts to fill this apparent gap in our Title VII jurisprudence.