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7th Circuit: Sexual Orientation Not Covered by Title VII

By Jonathan R. Tung, Esq. on August 03, 2016 | Last updated on March 21, 2019

Lesbians and gays (and presumably bisexual, transgender, and queer persons) do not enjoy Title VII anti-discrimination under that federal statute, the Seventh Circuit has ruled. However, cultural realities demand that employers cannot simply dodge legal punishment scot free.

"Beyond the Scope"

The ruling is the latest development in the case of Kimberly Hively, a part-time professor at Ivy Tech Community College, who sued her employer over allegations that she was not promoted because of anti-gay bias. She brought her case to the courts and argued that the school's actions were in violation of the 1964 Civil Rights Act Title VII.

Hively essentially pushed the argument that discrimination based on one's sexual orientation ought to be barred under Title VII. But the circuit court ruled that this theory went "beyond the scope" of the written law and that only Congress or The Supreme Court could make that call.

Court Decisions, EEOC

To support its decision, the court pointed to a series of court rulings starting from the early 80s to the 2000s in which the Seventh Circuit did not find that LGBTQ persons were a protected class. One couldn't help but get the impression, though, that the court was trying every which way to offer a helpful solution.

"The idea that the line between gender non-conformity and sexual orientation claims is arbitrary and unhelpful has been smoldering for some time, but the EEOC's decision ... threw fuel on the flames," the court said, referencing the EEOC 2015 decision that supported Hively's stance.

Race, Sex, Gender, National Origin

Under Title VII, the protected classes more or less run parallel with the classes that enjoy strict scrutiny review advantage in court. These classes include race, the sex and gender of the person injured, and the national origin of the injured party. If Hively's goal were to come to fruition, sexual preference would also become a protected class, either under law passed by Congress or as recognized by the federal appellate courts.

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