Human Resources

Should Your Harassment Training Address Sexual Orientation?

In light of a recent federal appeals court ruling, the short answer is, yes. On April 4, the U.S. Court of Appeals for the 7th Circuit, which covers Illinois, Indiana, and Wisconsin, concluded that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of sexual orientation.

Although the ruling applies only to those states, experts say the decision has implications for employers in other states as well.

What Happened

In 2000, “Madison” was hired as a part-time adjunct professor at Ivy Tech Community College of Indiana. She is openly a lesbian.

From 2009 to 2014, Madison applied for at least six full-time positions with the college but was not hired for any of them. In July 2014, she learned that her part-time contract would not be renewed.

She complained to the Equal Employment Opportunity Commission (EEOC) that she was “being blocked from full-time employment without just cause” and “discriminated against based on … [her] sexual orientation.” She alleged that her Title VII rights were being violated.

Madison received a right-to-sue letter and sued her employer. The college filed a motion to dismiss, arguing that sexual orientation is not a protected class under Title VII. The district court dismissed Madison’s case. She appealed to the 7th Circuit.

What the Court Said

In appeals court, Madison used two approaches to argue that discrimination based on sexual orientation is a form of sex discrimination under Title VII. The appeals court explained that Madison first relied on the comparative method, maintaining “that if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else stayed the same, Ivy Tech would not have refused to promote her and would not have fired her.”

In addition, Madison pointed to the associational theory and a line of related cases, which she maintained “protect her right to associate intimately with a person of the same sex.”

Charged only with deciding whether the district court was wrong to dismiss Madison’s complaint, the appeals court reversed the lower court’s decision—without ruling on the merits of the case. “We hold only 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,” the appeals court majority wrote.

The opening paragraph of the ruling summarizes its significance: “Title VII of the Civil Rights Act of 1964 makes it unlawful for employers subject to the Act to discriminate on the basis of a person’s ‘race, color, religion, sex, or national origin …,’” the majority wrote. “For many years, the courts of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person’s sexual orientation. The Supreme Court, however, has never spoken to that question. In this case, we have been asked to take a fresh look at our position in light of developments at the Supreme Court extending over two decades. We have done so, and we conclude … that discrimination on the basis of sexual orientation is a form of sex discrimination.”

Three dissenting judges expressed concern that the majority was overstepping its authority. They wrote, “It’s understandable that the court is impatient to protect lesbians and gay men from workplace discrimination without waiting for Congress to act. Legislative change is arduous and can be slow to come. But we’re not authorized to amend Title VII by interpretation.”

The majority said it was not amending Title VII to add a new protected category. “Obviously, that lies beyond our power.”

Instead, the majority said it was tasked with deciding “what it means to discriminate on the basis of sex, and in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex.”

Hively v. Ivy Tech Community College of Indiana (No. 15-1720) (U.S. Court of Appeals, 7th Cir., 4/4/17)

The EEOC already interprets Title VII as prohibiting sexual orientation discrimination, and the majority’s opinion conflicts with earlier decisions by multiple circuit courts, leaving legal experts to posit that the Supreme Court might soon address the issue, according to a recent HR Daily Advisor® article.

Due to EEOC’s view and a changing legal landscape, employers should be taking steps to avoid discriminating against employees on the basis of sexual orientation—no matter where their organization is located. “The current legal landscape is such that it’s already very dangerous to discriminate based on sexual orientation and hopefully most employers are taking steps to avoid that already,” Brent E. Siler, an attorney at Butler Snow, told BLR®, which publishes Training Daily Advisor.

Employers might want to consider adding “sexual orientation” to their policies as an example of prohibited sex discrimination and adding sexual orientation harassment to their training materials, Rozlyn Fulgoni-Britton, an associate at Faegre Baker Daniels in Indianapolis, wrote in an article for Indiana Employment Law Letter. Her argument for being proactive is a poignant one: “[a]n ounce of prevention now could be the difference in an employer avoiding being in the news as one of the first sexual orientation discrimination cases litigated under the 7th Circuit’s new Title VII interpretation.”