What does Hively mean for gay and lesbian employees in Texas?

Under Title VII of the Civil Rights Act, it’s illegal for covered employers to discriminate against a job applicant or employee on the basis of sex, among other protected characteristics. However, discrimination on the basis of sexual orientation has not been explicitly prohibited. In a 2017 case, Hively v. Ivy Tech Community College of Indiana, the Seventh Circuit held that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII. This ruling is different from the holdings of the nine other circuits.

The case arose when Hively, an openly lesbian adjunct professor, started teaching at a community college. She unsuccessfully applied for six full-time positions at the community college between 2009 and 2014. She believed that she was not getting hired full-time due to her sexual orientation and filed a charge to this effect with the Equal Employment Opportunity Commission (EEOC).

In court, the community college tried to get the case dismissed on the ground that sexual orientation was not a protected class under Title VII. The district court dismissed the case with prejudice. Hively appealed. A panel of the appellate court affirmed. It reasoned that discrimination based on sexual orientation was different from sex discrimination. The other circuits understood Title VII similarly.

The Seventh Circuit looked at a number of relevant Supreme Court decisions to make a different determination. One of the Supreme Court cases had clarified that gender stereotyping was prohibited as a form of sex discrimination. Another clarified it didn’t matter if the harasser was the same sex as the victim. The panel admitted it was difficult to distinguish gender nonconformity claims from sexual orientation claims.

The judges voted to rehear the case en banc. The majority of the appellate court, sitting en banc, reasoned that the EEOC had taken the position that the prohibition against sex discrimination included discrimination on the basis of sexual orientation. It reasoned that simply because Congress hadn’t anticipated a particular application of the law didn’t mean that the lack of anticipation could stand in the way of the law on the books. It further reasoned that the Supreme Court had found the prohibition against sex discrimination encompassed sexual harassment in the workplace, including same-sex workplace harassment, and that the prohibition also covered discrimination based on a failure to conform to a specific set of gender stereotypes.

The plaintiff argued that had she been a man married to a woman, and all else was the same, the community college wouldn’t have refused to promote her. The appellate court found that viewed through the lens of gender nonconformity cases, her case represented the ultimate case of a failure to conform to female stereotypes that viewed heterosexuality as the norm.

The plaintiff had also argued that taking an employment action based on sexual orientation was a form of sex discrimination based on the associational theory. The associational theory is that someone who is being subjected to discrimination due to the protected characteristic of someone with whom she associates is actually being disadvantaged because of her own traits. The appellate court also reasoned that it required work to remove “sex” from “sexual orientation,” and to do so would result in confusion. It pointed to courts that have found gender identity claims can be brought under Title VII.

Hively applies in Wisconsin, Illinois, and Indiana. However, the ruling may have some impact within Texas. It is an en banc ruling that can provide significant persuasive authority to other circuit courts, particularly those that have only ruled on similar issues in panel decisions. Although Hively is in line with the EEOC’s guidance related to Title VII, we don’t know how long the EEOC will stick to this guidance under the Trump Administration. At some point, the Supreme Court may hear this issue.

It can be important to obtain representation from an experienced employment lawyer when you have a dispute with your employer regarding sexual orientation discrimination or other matters. Contact us at (214) 528-6500 or via our online intake form.

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