CLIENT ALERT: U.S. Court of Appeals for the Seventh Circuit Rules that Discrimination Based on Sexual Orientation is a Form of Sex Discrimination Prohibited under Title VII

On Tuesday, April 4, 2017, the United States Court of Appeals for the Seventh Circuit issued its widely-anticipated decision in Hively v. Ivy Tech Community College of Indiana, becoming the first federal appellate court to hold that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation.  Kimberly Hively was a part-time adjunct professor at Ivy Tech Community College. She sued Ivy Tech, alleging that she was discriminated against by being denied full-time employment and promotion because of her sexual orientation, in violation of Title VII.  In response, Ivy Tech argued that sexual orientation is not a protected class under Title VII.

In an 8-3 en banc decision, the Court of Appeals held that discrimination on the basis of sexual orientation is a form of sex discrimination, and that under Title VII, gay and lesbian workers have the right to sue for discriminatory employment practices that are based on their sexual orientation.  The Court of Appeals reviewed extensive precedent, including prior Supreme Court decisions that examined the scope and meaning of race and sex under Title VII, and concluded: “The 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.”  Op. at 21-22.

In her dissenting opinion, Judge Sykes characterized the issue as one of statutory construction and challenged the authority of the majority to “infuse the text [of Title VII] with a new or unconventional meaning or to update it to respond to changed societal, economic, or political conditions.” Op. at 41.  Other federal courts currently are considering whether Title VII prohibits discrimination on the basis of sexual orientation, and ultimately, the issue may be decided by the Supreme Court or Congress.

Delaware employers likely have already incorporated sexual orientation into their anti-discrimination policies, as Delaware law expressly prohibits workplace discrimination based on sexual orientation, as well as gender identity and other protected categories. Nonetheless, employers are advised to review their policies and provide employee training that addresses LGBT issues.

The Delaware Legislative Front: Wage History

Early indications are that Delaware’s 149th General Assembly will be active in the area of employment practices. House Bill No. 1, introduced on April 4, proposes to make it an unfair employment practice for employers to inquire into a prospective employee's compensation history.  The measure is intended to address gender-based wage disparities, on the theory that when employers ask applicants for their wage or salary history, it perpetuates gender-based pay disparities from one job to the next.  A prospective employee may voluntarily disclose the information if he or she wishes to do so, and House Bill No. 1 explicitly permits discussion and negotiation of compensation expectations between an employer and prospective employee, provided that the employer does not request compensation history in the course of those discussions.  If enacted, the effective date of the legislation would be delayed for 6 months, to give employers time to update their policies and adjust their hiring practices, if necessary.

We’ll keep you posted on developments with House Bill No. 1 and other employment-related legislation introduced in the General Assembly.

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