Seventh Circuit Rejects Claim of Sexual Orientation Discrimination

By Jordan M. White

Just last year, the Equal Employment Opportunity Commission (“EEOC”) ruled that sexual orientation discrimination is unlawful under Title VII of the Civil Rights Act.  On July 28, 2016, the U.S. Court of Appeals for the Seventh Circuit rejected the EEOC’s determination and ruled that Title VII does not protect employees from workplace discrimination on the basis of sexual orientation.  In Hively v. Ivy Tech Community College, Kimberly Hively, a part-time adjunct professor, claimed that she was denied full-time employment and promotions because she was a lesbian.  Hively began her teaching career at Ivy Tech in 2000.  Between 2009 and 2014, she applied for six full-time positions. She alleged that the college never even interviewed her for any of those positions, despite having the necessary qualifications and a record of positive work performance evaluations.

In December 2013, Hively filed a charge with the EEOC, alleging that she had been discriminated against on the basis of her sexual orientation and had been “blocked from full-time employment without just cause.”  Ivy Tech did not renew her part-time employment contract in July 2014 and she filed suit.  Ivy Tech successfully argued at

EEOC Files First Title VII Suits Alleging Discrimination Based on Sexual Orientation

By Michelle High

On Tuesday, March 1, 2016, the Equal Employment Opportunity Commission (“EEOC”) filed two sex discrimination lawsuits in federal court that are premised upon the Commission’s position that sexual orientation discrimination is a violation of Title VII of the Civil Rights Act of 1964.

The first lawsuit filed by the EEOC was filed in the United States District Court for the Western District of Pennsylvania against Scott Medical Health Center.  In the suit, the EEOC alleges that a gay male employee was subjected to harassment because of his sexual orientation and/or because he did not conform to the employer’s gender-based expectations, preferences, or stereotypes. The employee’s immediate supervisor knew that

EEOC Finds That Discrimination Based on Sexual Orientation is Prohibited by Title VII

By Courtney Ross Samford

On July 16, 2015, the EEOC announced that sexual orientation is included within Title VII’s prohibition against sex discrimination in Complainant v. Foxx, 2015 WL 4397641 (EEOC July 16, 2015).  Foxx worked as an air traffic control specialist in Miami, Florida.  He claimed that he was discriminated against in violation of Title VII when he was not selected for a permanent promotion based on his sexual orientation.  Foxx alleged that one of his supervisors said, “We don’t need to hear about that gay stuff” in response to a story about his male partner, and referred to his relationship as a “distraction in the radar room” on numerous occasions.  The EEOC found that the complaint properly stated a claim of sex discrimination because “sexual orientation is inherently a ‘sex-based consideration.’”

In the decision, the EEOC further opined that “[s]exual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”  As such, “[a]n employee could show that the sexual orientation discrimination he or she experienced was sex discrimination because it involved treatment that would not have occurred but for the individual’s sex; because it was based on the sex of the person(s) the individual associates with; and/or because it was premised on the fundamental sex stereotype, norm, or expectation that individuals should be attracted only to those of the opposite sex.”  This expands the EEOC’s previous interpretation that Title VII only encompassed discrimination based on an employee’s failure to conform to gender stereotypes.

While the EEOC’s decision is momentous for the LGBT community, it is not binding on state or federal courts.  Even if courts choose not to adopt the EEOC’s expansive definition of sex discrimination, employers should re-evaluate their current policies to avoid compliance issues with the EEOC.

OSC Finds That Army Harassed Transgender Worker

By Leila G. O’Carra

On October 23, 2014, the U.S. Office of Special Counsel announced its landmark determination that the Department of the Army engaged in gender identity discrimination against a civilian Army quality assurance specialist after she revealed her intention to transition from male to female. The Army agreed to provide remedial training on prohibited personnel practices, particularly on prohibitions against gender identity discrimination. The Army also agreed to provide workplace diversity and sensitivity training.

This finding marks the latest in a string of federal governmental actions aimed at prohibiting discrimination in the workplace on the basis of sexual orientation and gender identity.

• Last month, the Equal Employment Opportunity Commission filed two lawsuits on behalf of plaintiffs challenging transgender discrimination.   In both cases, the plaintiffs claim that their employers fired them because they were transitioning from male to female. The EEOC has previously interpreted Title VII to prohibit discrimination on the basis of transgender status, but this new litigation will be the first time that the EEOC tests its interpretation in court.
• In July 2014, President Obama signed an Executive Order prohibiting federal government contractors and subcontractors from discriminating in employment decisions on the basis of sexual orientation or gender identity.
• In April 2014, in official guidance on Title IX, the Office of Civil Rights stated that “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity…”

Employers must understand that while sexual orientation and gender identity are not listed as protected classes in either Title VII or Title IX, the federal agencies charged with enforcing those laws interpret them to prohibit discrimination on the basis of sexual orientation and gender identity. However, employers that are “religious corporations,” and educational institutions that are “controlled by religious organizations,” may be entitled to exemptions if application of the law would be inconsistent with the religious tenets of those organizations.

President Signs Executive Order Prohibiting Discrimination Based on Sexual Orientation or Gender Identity

By Edwin S. Hopson

On July 21, 2014, President Obama signed an Executive Order prohibiting federal government contractors and subcontractors from discriminating in employment decisions on the basis of sexual orientation or gender identity.

The Executive Order is an amendment to Executive Order 11246, issued by President Lyndon Johnson on September 24, 1965, and enforced by the Labor Department’s Office of Federal Contractor Compliance Programs.

Commenting on his action, “…the President also pointed out that workplace equality is simply good business. Noting that most of the Fortune 500 companies already have nondiscrimination policies on their books, he explained that these policies help companies attract and retain the best talent.”

For more information about Executive Order 11246, see:

http://www.dol.gov/ofccp/regs/compliance/ca_11246.htm

House Labor Committee Holds ENDA Hearings

by George Miller

On September 23, 2009, the House Labor Committee opened hearings on the Employment Non-Discrimination Act of 2009 (H.R. 3017), otherwise referred to as ENDA.  ENDA is sponsored by Rep. Barney Frank (D – MA) and has been introduced in previous sessions of Congress.  ENDA would prohibit employment discrimination, preferential treatment, and retaliation on the basis of sexual orientation or gender identity by employers with fifteen or more employees.  Currently some, but not all, states prohibit discrimination on the basis of either sexual orientation or gender identity, and many municipalities have ordinances prohibiting such discrimination.  But if passed, ENDA would apply to all employers with fifteen or more employees everywhere in the country, except religious institutions that are exempt from coverage by equal employment laws.  At the opening hearing on September 23^rd, testimony was taken from a number of witnesses, including Rep.Frank.  A video of his and other witnesses’ testimony, and the entire proceedings, can be found at  http://edlabor.house.gov/hearings/labor/worker-rights/.

FedEx Adopts Gender Identity As Protected Class

By Kim Koratsky

The Memphis, Tennessee, newspaper, The Commercial-Appeal reports that FedEx has added gender identity as an additional protected class covered by its corporate nondiscrimination policy.  FedEx already included sexual orientation in its workplace non-discrimination policy, but it has now expanded the language.