Seventh Circuit Grants Petition for En Banc Review in Sexual Orientation Case

By Deryn Sumner

As we’ve discussed a few times in this space, in July 2015, the EEOC’s Office of Federal Operations made headlines when it declared in Baldwin v. Department of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015) that claims of sexual orientation were simply claims of sex discrimination, stated claims under Title VII, and should be processed by federal agencies under existing procedures.  The EEOC made further headlines earlier this year when it filed two lawsuits against private sector employers alleging sex discrimination against gay employees and relying upon Baldwin to argue the cases had standing.  The plaintiff-side employment law community seized upon this, to varying degrees of success.

However, there was a recent victory in the form of the Court of Appeals for the Seventh Circuit’s grant of a request for a rehearing en banc in the case of Hively v. Ivy Tech Community College.  There, a part-time adjunct professor argued she was denied full-time employment and subsequent promotions because of her sexual orientation, and she filed a lawsuit under Title VII.  The District Court granted the College’s Motion to Dismiss, which the Court of Appeals affirmed in its July 28, 2016 decision.  See Hively, 830 F.3d 698 (7th Cir. 2016). That decision included extensive discussion of the surrounding law relating to sexual orientation claims, which up until recently had been focused on the idea of sexual stereotyping.  The Court noted that Congress had not included sexual orientation as a basis under Title VII, and recent attempts at amendment had been unsuccessful.

The decision concluded, “Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it, (see Baldwin, 2015 WL 4397641 at **5, 10); many of the federal courts to consider the matter have stated that they do not condone it (see, e.g., Vickers, 453 F.3d at 764–65; Bibby, 260 F.3d at 265; Simonton, 232 F.3d at 35; Higgins, 194 F.3d at 259; Rene, 243 F.3d at 1209, (Hug, J., dissenting); Kay, 142 Fed.Appx. at 51; Silva, 2000 WL 525573, at *1); and this court undoubtedly does not condone it (see Ulane, 742 F.2d at 1084). But 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, and therefore, the decision of the district court is AFFIRMED.” Id .at 718. 

Seems pretty final, huh.  However, the Court of Appeals just last week granted the appellant’s petition for an en banc rehearing.  Such requests are very rarely granted and this seems to signal that there’s more to come from the Seventh Circuit on this issue.  Oral argument has been scheduled for November 30, 2016 and we’ll keep you updated on this and other developments in Title VII case law.  Sumner@FELTG.com