Title VII of the Civil Rights Act of 1964 (Title VII) bars employers from discriminating in the terms, conditions, and privileges of employment on the basis of sex. The Equal Employment Opportunity Commission (EEOC) — which enforces Title VII — has gradually revised its interpretation of Title VII to the point where the agency now asserts that it is settled law that discrimination on the basis of sex encompasses sexual orientation and transgender status bias.
Although the federal courts have extended workplace protection to LGBT workers based on alternate legal theories, most commonly failure to conform to gender-based stereotypes, no federal appeals court has agreed with the EEOC’s expansive reading of the statute.
Now, in a surprising rebuke from a federal appeals court that in the past has accorded considerable deference to novel EEOC policy and legal interpretations, the Seventh Circuit Court of Appeals has ruled that discrimination based solely on an individual’s sexual orientation is beyond Title VII’s scope.
Although sympathetic to the EEOC’s policy arguments, the decision by the Seventh Circuit in Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. July 28, 2016), nevertheless concludes that nothing in Title VII’s text supports the agency’s position that sexual orientation discrimination is, by definition, unlawful discrimination because of sex.
A copy of the Hively decision is available here.
Members of the Equal Employment Advisory Council (EEAC) can read more here.