Seventh Circuit Makes the Case for Covering Sexual Orientation Under Title VII—Then Punts to the Supreme Court

Seventh Circuit Makes the Case for Covering Sexual Orientation Under Title VII—Then Punts to the Supreme Court


A former adjunct teacher who accused her employer of sexual orientation discrimination lost her case because federal law does not offer protection for employees who say they are discriminated against on that basis.  A panel of the Seventh Circuit Court of Appeals was bound by precedent to deny her claims, but noted that employees who bring sexual orientation discrimination claims under Title VII of the Civil Rights Act of 1964 should be protected.

Kimberly Hively, a former part-time adjunct professor at Ivy Tech Community College, stated that she was repeatedly passed over for full-time employment and promotions over a five-year period because she was a lesbian.  She brought a claim against Ivy Tech, alleging that she was discriminated against on the basis of her sexual orientation in violation of Title VII. 

Ivy Tech filed a motion to dismiss on the basis that Title VII does not apply to claims of sexual orientation discrimination, which the district court granted.  The Seventh Circuit panel affirmed this decision based on the precedent of two prior cases which distinctively held that Title VII does not apply to sexual orientation claims.  Those cases made it clear that harassment based solely upon a person’s sexual preference or orientation, but not one’s sex, is not an unlawful employment practice under Title VII. 

While dismissing the case, Judge Rovner devoted most of the decision to the changing legal landscape with respect to protections and civil rights for gay, lesbian, bisexual, and transgender individuals.  The panel considered the EEOC’s recent decision in which it concluded that “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”  Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 16, 2015).  However, while EEOC rulings are entitled to some level of deference, they are not binding on federal courts.

The panel also looked at how other Circuits have haphazardly handled the issue of sexual orientation discrimination.  Some circuits have completely disallowed any claims where sexual orientation and gender non-conformity are inexplicably intertwined.  While gender non-conformity or stereotyping claims have been found to be protected under Title VII, Courts applying this strategy simply dismiss the claim, stating that a gender stereotyping claim should not be used to bootstrap protection for sexual orientation into Title VII.

Other Circuits have tried to carefully tease apart the sexual orientation and gender non-conformity claims and only look at those portions of the claim that appear to be cognizable non-conformity discrimination.  Under this strategy, plaintiffs who exhibit more visibly and stereotypically gay or lesbian mannerisms, appearances, and behavior in the workplace have greater protection under Title VII than a plaintiff who does not look, act, or appear to be gender non-conforming.  The Court’s detailed discussion on this issue provides a roadmap for plaintiffs to have a better chance at successfully pleading Title VII discrimination under the current state of the law.

The panel criticized the lack of protection for sexual orientation throughout its decision, but ultimately said that change must come in the form of a ruling from the U.S. Supreme Court or new legislation from Congress.  It was bound by precedent and was required to dismiss the case.

The court’s decision may be found here.

For specific guidance on the implications of this changing area of the law, please contact Saul Ewing attorneys Dena Calo ( or Brittany Medio (

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