On April 4, 2017, in a landmark decision by a majority of an en banc panel of the Seventh Circuit Court of Appeals, the Court held that under Title VII of the Civil Rights Act of 1964 (“Title VII”), specifically 42 U.S.C. § 20003-2 (which proscribes unlawful employment practices), “discrimination on the basis of sexual orientation is a form of sex discrimination.” Hively v. Ivy Tech Community College of Indiana, — F.3d —, 2017 WL 1230393 at *1 (7th Cir. Apr. 4, 2017).
Plaintiff Kimberly Hively is openly lesbian and began teaching as a part-time, adjunct professor at Ivy Tech Community College’s South Bend campus (“Ivy Tech”) in 2000. In hopes of a promotion, she applied for at least six full-time positions between 2009 and 2014, however, these efforts were unsuccessful. Then, in July of 2014, her part-time contract was not renewed. Believing that Ivy Tech was spurning her because of her sexual orientation, Ms. Hively filed a charge with the Equal Employment Opportunity Commission and, after receiving a right-to-sue letter, she filed a complaint with the United States Federal District Court for the Northern District of Indiana. Ms. Hively’s complaint was met with a motion to dismiss by Ivy Tech on the ground that she failed to state a claim upon which relief can be granted because, according to Ivy Tech, “sexual orientation is a not a protected class under Title VII”. Id. at *1.
The District Court agreed with Ivy Tech and dismissed the case with prejudice. A three-judge panel of the Seventh Circuit affirmed. Id. at *1. Although those decisions were supported by prior Seventh Circuit precedent, it was aptly noted by the en banc panel that the Supreme Court of the United States had never spoken precisely on the issue at hand but had recently ruled that same-sex couples had the constitutional right to marry. Id. at *2 (citing Obergefell v. Hodges, 135 S.Ct. 2584 (2015)). Thus, “[i]n light of the importance of the issue, and recognizing the power of the full court to overrule earlier decisions and to bring our law into conformity with the Supreme Court’s teachings, a majority of the judges in regular active service voted to rehear this case en banc.” Id. at *2.
Sexual Orientation Discrimination is Sex Discrimination for Title VII Purposes
The en banc majority began its analysis of the issue by expressly proclaiming that its mission was not to “amend” Title VII to include sexual orientation as a protected classification but, instead, to engage in statutory interpretation to determine “whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex”, an already explicitly protected classification under Title VII. Id. at *3. After surveying the recent development of Supreme Court opinions finding in favor of protecting rights relating to sexual orientation, such as Obergefell, supra, the en banc majority declared that “[t]he logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.” Id. at *9. The Court therefore expressly held that “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” Id. at *9.
While this is certainly a landmark case under Title VII jurisprudence, it must be noted that New Jersey’s Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (the “NJLAD”), unlike Title VII, explicitly enumerates “sexual orientation” as a protected classification for purposes of its anti-discrimination protections, see N.J.S.A. 10:5-12(a), and it has done so since its 1991 amendments. The NJLAD also further protects “perceived sexual orientation” discrimination. See e.g. L.W. ex rel. L.G. v. Toms River Regional Schools Bd. of Educ., 189 N.J. 381, 402 (2007).
In fact, The Sattiraju & Tharney, LLP, obtained a $22.6 million jury verdict on behalf of a client that claimed he was subject to a hostile work environment based upon his perceived sexual orientation under the NJLAD. Suffice to say, these claims, if properly presented to a jury by competent counsel, can be quite lucrative.
If you believe you have been subject to sexual orientation discrimination or harassment, whether actual or perceived, immediately contact the attorneys at The Sattiraju & Tharney, LLP in Princeton, New Jersey at (609) 722-7039 for a free consultation. We fight for workers’ justice under a litany of employee-rights statutes including the NJLAD.