What the Hively Decision Means for Employers & LGBT Community
A federal court in Chicago has become the first U.S. appellate court in the nation to rule that LGBT employees are protected from workplace discrimination.…
July 26, 2017 at 01:40 PM
4 minute read
The original version of this story was published on Law.com
A federal court in Chicago has become the first U.S. appellate court in the nation to rule that LGBT employees are protected from workplace discrimination. In Hively v. Ivy Tech Community College, the landmark decision by the Seventh Circuit provides clarification that discrimination based on sexual orientation is a form of sex discrimination, and is prohibited by Title VII of the Civil Right Act of 1964.
JoLynn Markison, partner at Dorsey & Whitneyin's Labor & Employment Group, recently sat down with Inside Counsel to discuss the recent decision's effect on employers and the LGBT community. Markison represents large and small corporations in employment litigation involving race, gender, national origin, religion, disability, and age retaliation and discrimination; sexual harassment; and wage and hour claims.
At this point, it is difficult to predict Hively's impact, according to Markison. Earlier this month, the Eleventh Circuit declined to rehear a panel decision finding that Title VII does not apply to discrimination based on sexual orientation. In fact, Lambda Legal says it will ask the U.S. Supreme Court to weigh in on this issue, and to decide whether Title VII protects employees based on sexual orientation. Because Hively represents a split from the Eleventh Circuit panel decision in Jameka Evans v. Georgia Regional Hospital et al., it increases the likelihood the Supreme Court will choose to decide the issue.
“This decision has legal ramifications for employers who do business in the Seventh Circuit—Wisconsin, Illinois, and Indiana. For employers doing business in Wisconsin and Illinois, this ruling does not represent a great change; those states already have laws prohibiting discrimination based on sexual orientation,” she explained. “Employers in Indiana, however, are not required by state law to treat LGBT employees equally. Those employers should immediately update their policies and handbooks to explicitly prohibit discrimination based on sexual orientation.”
This Seventh Circuit decision departs from panel decisions by the Second and Eleventh Circuits, which concluded that Title VII does not protect employees based on sexual orientation. Rehearings en banc of the Second and Eleventh Circuit decisions are still possible, said Markison, which would result in all the judges of those Circuits reviewing this issue. Employers outside the Seventh Circuit should seriously consider updating their policies to exclude discrimination based on sexual orientation, per Markison.
“The Seventh Circuit acknowledged a decade-long trend of Supreme Court decisions protecting the rights of LGBT citizens,” she added. “Many states already have laws that prohibit discrimination based on sexual orientation. Even if other courts refuse to follow the Seventh Circuit's interpretation of Title VII, employers must still comply with state laws relating to employment discrimination.”
Although Hively will most likely not be the last case to address the definition of “sex” in Title VII, per Markison, the decision does marks the first step in what could be a shift in employment law. Even for employers who are not within the Seventh Circuit and who do not have employees in states that prohibit discrimination based on sexual orientation, this issue will be an important one to watch.
“Hopefully, this will lead to the advancement of LGBTQI rights,” she said. “The real test will come if and when the Supreme Court decides the issue. The Circuit split between Hively and Evans paves the way for the Supreme Court to take up the issue. “
Because the Seventh Circuit decision is only binding in Wisconsin, Illinois, and Indiana, Hively will not impact Title VII's application outside those states. Also, since Wisconsin and Illinois already have laws prohibiting discrimination on the basis of sexual orientation, Hively does not represent a big change in those states. On the other hand, employers in Indiana are not required by law to treat LGBTQI employees equally – those employers should update their policies to explicitly prohibit discrimination based on sexual orientation, according to Markison.
“Unfortunately, many states—and many people residing in those states—still do not view LGBTQI people as worthy of equal treatment under the law,” said Markison. “The Seventh Circuit has found that under Title VII, discrimination based on sexual orientation is a form of sex discrimination. While definitely a step in the right direction, this decision will not necessarily lead to Indiana amending its state discrimination laws.”
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllInside Track: How 2 Big Financial Stories—an Antitrust Case and a Megamerger—Have Become Intertwined
Trump Likely to Keep Up Antitrust Enforcement, but Dial Back the Antagonism
5 minute readA Blueprint for Targeted Enhancements to Corporate Compliance Programs
7 minute readTrending Stories
- 1Infant Formula Judge Sanctions Kirkland's Jim Hurst: 'Overtly Crossed the Lines'
- 2Trump's Return to the White House: The Legal Industry Reacts
- 3Election 2024: Nationwide Judicial Races and Ballot Measures to Watch
- 4Climate Disputes, International Arbitration, and State Court Limitations for Global Issues
- 5Judicial Face-Off: Navigating the Ethical and Efficient Use of AI in Legal Practice [CLE Pending]
- 6How Much Does the Frequency of Retirement Withdrawals Matter?
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250