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11th Circuit Considering Viability of Sexual Orientation Discrimination Claims


While no federal appeals court has yet declared sexual orientation discrimination to be a violation of Title VII, these types of claims are being pursued more frequently forcing courts to consider the issue more and more. A recent decision in the 7th Circuit addressed the issue of sexual orientation discrimination, finding that such a claim was not protected by Title VII. However, the 11th Circuit still has relevant cases pending.

The case of Kimberly Hively

A part-time adjunct professor in Indiana, Kimberly Hively, was first hired at Ivy Tech Community College in 2000. By 2014, she remained a part-time professor, after repeatedly being passed over for full-time status. Indeed, she applied for six different positions between 2009 and 2014 and was never even interviewed. She claimed in her lawsuit that she was being denied these positions because she is a lesbian.

The trial court determined that “sexual orientation” - the basis for her alleged discrimination claim - was not a recognized ground for a Title VII action. The Seventh Circuit Court of Appeals in Chicago agreed, holding that sexual orientation or preference, unlike discrimination based on sex, is not a prohibited employment practice under Title VII.

Is sexual orientation inherently sex-based?

Even though there has been no federal ruling that sexual orientation discrimination violates Title VII, the EEOC ruled in Baldwin v. Foxx that “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” The problem is, while EEOC decisions are binding on the federal government, private employers are not obligated to follow them.

Baldwin could pave the way for inclusion of sexual orientation protection

Regardless of the non-binding effect of Baldwin, the decision is an important one and could certainly pave the way for a federal court to extend the protections of Title VII to sexual orientation discrimination. In fact, the 11th Circuit (which has jurisdiction over Alabama federal courts) will have that opportunity in two cases out of Georgia and Florida.

The current protections of Title VII

Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate against someone on the basis of race, color, religion, national origin, or sex. It is also unlawful to retaliate against someone because they complain about such discrimination, file a charge of discrimination with the EEOC, and participate in a discrimination investigation or lawsuit. Title VII also requires an employer to provide reasonable accommodations for religious practices that are “sincerely held,” as long it the accommodation would not create an undue hardship on the employer’s business.

The potential effect of a relevant ruling on sexual orientation

An 11th Circuit ruling stating that Title VII includes protection against sexual orientation discrimination would obviously have a clear and immediate impact on employers and employees in states within the 11th Circuit. Such a decision could also prompt involvement by the U.S. Supreme Court, therefore, a ruling in favor of gay and lesbian employees in that court would affect employers and employees nationwide.

If you feel you have been the victim of discrimination or retaliation, or if you have any questions regarding your employment rights, please contact Michel | King , either online or by calling us at (205) 265-1880.

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