Last month, in Kimberly Hively v. Ivy Tech Community College, South Bend, the United States Court of Appeals for the Seventh Circuit dismissed Plaintiff Kimberly Hively’s (“Ms. Hively”) lawsuit against her employer for sexual orientation discrimination and harassment under the Civil Rights Act of 1964 (“Title VII”).  Ms. Hively alleged she was denied full-time employment and promotions based on her sexual orientation.  Her employer moved to dismiss the lawsuit based on federal court precedent arguing that harassment and discrimination based on sexual orientation, and not sex, was not an unlawful employment practice as specifically defined under Title VII. 

            The Court of Appeals agreed with Ms. Hively’s employer and dismissed the case based on precedent as it was “beyond the scope of [Title VII].”  The Court reasoned that while the differences between sexual orientation and gender discrimination claims are highly nuanced and some courts, and entities like the Equal Employment Opportunity Commission, consider sexual orientation claims a subset of gender discrimination claims, the Seventh Circuit does not. The Court explained that in light of the United States Supreme Court’s recent decision upholding same-sex marriages and changing attitudes nationwide, the issue will continue to be raised in the future until Congress takes action to amend or supplement Title VII.   

            Ms. Hively has not indicated whether she will seek a rehearing of the decision, but several advocate groups have volunteered their assistance and expressed a desire to take this issue to the United States Supreme Court.  Moreover, this issue is also before other federal courts, including the United States Court of Appeals for the Second Circuit. It is necessary for employers to be cognizant of potential areas for perceived or actual discrimination and harassment based on sexual orientation and the latest legal developments in the states where they do business.