As some of you may recall, in April of 2017, the Seventh Circuit issued a HUGELY important decision, ruling that a federal anti-discrimination statute prohibits sexual orientation discrimination in the workplace. If you missed it or want to understand more fully how this decision helped create a workplace sexual orientation circuit split, take a look at our blog post on the decision. If not, here’s the quick and dirty:
The U.S. congress has tried and failed to pass legislation which prohibits employers from discriminating against LGBTQ employees for more than 20 years now. As a result, litigants (including the EEOC) have started pursuing sexual orientation cases under Title VII – the federal statute which prohibits, among other things, gender discrimination. For a long time, the Seventh Circuit held that Title VII’s definition of gender discrimination did not encompass sexual orientation discrimination, which left LGBTQ employees without any federal protections against workplace discrimination. However, in April of this year, the Seventh Circuit reversed its previous rulings and decided in an 8-3 vote that Title VII’s gender discrimination prohibition does, in fact, prohibit discrimination on the basis of sexual orientation. This was the Hively decision and it was a major win for LGBTQ employees.
Unfortunately, decisions issued by the Court of Appeals for the Seventh Circuit apply only to employees working in Illinois, Indiana, and Wisconsin. And other appellate courts representing other areas of the country have refused to interpret Title VII’s protections to prohibit sexual orientation discrimination. For instance, in Evans v. Georgia Regional Hospital, the Eleventh Circuit ruled that an employee who alleged that she was harassed and forced out of her job because she is a lesbian was not protected by Title VII. This has resulted in a circuit split – in other words, a disagreement between appellate courts – as to whether Title VII should be interpreted to include protections for LGBTQ employees.
Typically, a circuit split will result in the Supreme Court of the United States granting certiorari (or, to translate fancy-pants legal jargon, agreeing to hear a case) so that it can weigh in on the issue and establish one consistent interpretation of the law which would then be applicable to all of the appellate courts covering the entire country. This is exactly what most people thought would happen when the plaintiff in Evans filed a petition asking for the SCOTUS to reconsider the Eleventh Circuit’s decision. But today, the Supreme Court denied the petition in Evans without providing a reason.
As a result, at least for now, the Hively decision remains safe. We assume that eventually, if congress continues to refuse to pass legislation prohibiting sexual orientation discrimination in the workplace, the Supreme Court will have to agree to hear this issue. And if and when that comes to pass, we certainly hope that the SCOTUS will side with the Seventh Circuit to ensure that LGBTQ employees are protected from bigotry and harassment. Indeed, given the court’s decision in Obergefell (holding that the fundamental right to marry is guaranteed to same-sex couples), there is even good reason to expect that such an outcome is possible. But there are no guarantees here and, with the current social climate and recent political history, I’m done with optimistic predictions.
So for now, we are pleased to know that the Seventh Circuit’s ruling in Hively will stand for at least a little longer and that federal protections for LGBTQ employees in Illinois, Indiana, and Wisconsin remain the law of at least this part of the land.
