What the Hively Decision Means for Employers & LGBT Community

A federal court in Chicago has become the first U.S. appellate court in the nation to rule that LGBT employees are protected from workplace discrimination. In Hively v. Ivy Tech Community College, the landmark decision by the Seventh Circuit provides clarification that discrimination based on sexual orientation is a form of sex discrimination, and is prohibited by Title VII of the Civil Right Act of 1964.

JoLynn Markison, partner at Dorsey & Whitneyin’s Labor & Employment Group, recently sat down with Inside Counsel to discuss the recent decision’s effect on employers and the LGBT community. Markison represents large and small corporations in employment litigation involving race, gender, national origin, religion, disability, and age retaliation and discrimination; sexual harassment; and wage and hour claims.

At this point, it is difficult to predict Hively’s impact, according to Markison. Earlier this month, the Eleventh Circuit declined to rehear a panel decision finding that Title VII does not apply to discrimination based on sexual orientation. In fact, Lambda Legal says it will ask the U.S. Supreme Court to weigh in on this issue, and to decide whether Title VII protects employees based on sexual orientation. Because Hively represents a split from the Eleventh Circuit panel decision in Jameka Evans v. Georgia Regional Hospital et al., it increases the likelihood the Supreme Court will choose to decide the issue.

“This decision has legal ramifications for employers who do business in the Seventh Circuit—Wisconsin, Illinois, and Indiana. For employers doing business in Wisconsin and Illinois, this ruling does not represent a great change; those states already have laws prohibiting discrimination based on sexual orientation,” she explained. “Employers in Indiana, however, are not required by state law to treat LGBT employees equally. Those employers should immediately update their policies and handbooks to explicitly prohibit discrimination based on sexual orientation.” 

This Seventh Circuit decision departs from panel decisions by the Second and Eleventh Circuits, which concluded that Title VII does not protect employees based on sexual orientation. Rehearings en banc of the Second and Eleventh Circuit decisions are still possible, said Markison, which would result in all the judges of those Circuits reviewing this issue. Employers outside the Seventh Circuit should seriously consider updating their policies to exclude discrimination based on sexual orientation, per Markison.

“The Seventh Circuit acknowledged a decade-long trend of Supreme Court decisions protecting the rights of LGBT citizens," she added. “Many states already have laws that prohibit discrimination based on sexual orientation. Even if other courts refuse to follow the Seventh Circuit’s interpretation of Title VII, employers must still comply with state laws relating to employment discrimination.”

Although Hively will most likely not be the last case to address the definition of “sex” in Title VII, per Markison, the decision does marks the first step in what could be a shift in employment law. Even for employers who are not within the Seventh Circuit and who do not have employees in states that prohibit discrimination based on sexual orientation, this issue will be an important one to watch.

“Hopefully, this will lead to the advancement of LGBTQI rights,” she said. “The real test will come if and when the Supreme Court decides the issue. The Circuit split between Hively and Evans paves the way for the Supreme Court to take up the issue. “

Because the Seventh Circuit decision is only binding in Wisconsin, Illinois, and Indiana, Hively will not impact Title VII’s application outside those states. Also, since Wisconsin and Illinois already have laws prohibiting discrimination on the basis of sexual orientation, Hively does not represent a big change in those states. On the other hand, employers in Indiana are not required by law to treat LGBTQI employees equally - those employers should update their policies to explicitly prohibit discrimination based on sexual orientation, according to Markison.

“Unfortunately, many states—and many people residing in those states—still do not view LGBTQI people as worthy of equal treatment under the law,” said Markison. “The Seventh Circuit has found that under Title VII, discrimination based on sexual orientation is a form of sex discrimination. While definitely a step in the right direction, this decision will not necessarily lead to Indiana amending its state discrimination laws.”

Contributing Author

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Amanda Ciccatelli

Amanda G. Ciccatelli is a Freelance Journalist for InsideCounsel, where she covers intellectual property, legal technology, patent litigation, cybersecurity, innovation, and more. She earned a B.A....

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