In a groundbreaking decision, the 7th Circuit Court of Appeals extended Title VII protections against sex discrimination to LGBT plaintiffs. Prior to this decision, the provision prohibiting discrimination based on sex was narrowly interpreted and did not extend to issues of sexual orientation. In a decision earlier this week the court expanded the provision of Title VII that provided protection against discrimination on the basis of sex to include discrimination based on sexual orientation.

What Happened in the Case?

In the case in question, Hively v. Ivy Tech Community College, plaintiff Kimberly Hively filed a lawsuit alleging that she was subject to discrimination as a result of her sexual orientation. Hively, who identifies as lesbian, was employed as a part-time professor at Ivy Tech Community College for 14 years. In her complaint, she alleged that during the course of her employment, she applied for full-time positions at least 6 times, but never made it past the application stage.  She alleged that she was qualified for the positions she applied for, but that she never advanced at Ivy Tech Community College because of her sexual orientation.

Hively filed a lawsuit alleging sex discrimination under Title VII. Hively’s case was initially dismissed when the trial court found that the existing Title VII provisions prohibiting sex discrimination did not include protection for discrimination based on sexual orientation. Hively appealed to the 7th Circuit Court of Appeals. Looking back at previous cases, a three judge panel at the 7th Circuit agreed with the trial court despite the contradiction the conclusion presented, stating that the court was in “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act,”.

However, Hively’s case found new life when all of the 7th Circuit judges agreed to re-hear the case en banc. By an 8 to 3 vote the en banc panel overturned the original 7th Circuit decision, extending the Title VII provisions prohibiting discrimination based on sex to sexual orientation. The case was then remanded for a decision as to whether or not Hively actually suffered discrimination as a result of her sexual orientation.

How Should MA Employers Respond to this Decision?

While, we don’t know whether or not Hively actually suffered discrimination at the hands of her employer, this decision will likely impact how Title VII is interpreted throughout the 7th Circuit and only time will tell whether other circuits will follow or reject the 7th Circuit’s ruling. It is important to remember that Massachusetts employers are already subject to state laws which prohibit discrimination on the basis of sexual orientation. This means that practically speaking, the law remains the same for you and your MA business.

If you are an employer in MA, you should continue to provide a safe and welcoming work environment to all of your employees, regardless of their sexual orientation. You can also use this as an opportunity to review your anti-discrimination policies to ensure you are complying with state law and protecting yourself from unnecessary liability.

If you have any questions about workplace discrimination, or how to create a supportive work environment for your employees, contact the experienced, talented employment law attorneys at Conn Kavanaugh. We are always happy to answer your questions.

THOMAS J. GALLITANO

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