“Changing Workplace Norms Require a Fresh Look at the Issue of Sexual Orientation”

By:  Amy Epstein Gluck


Well, well, well.

It seems that miracles never cease.

Also, I think my partner Rich possesses solid psychic abilities.

The National Law Review reported that the Seventh Circuit, in Chicago, vacated its July 28, 2016, decision holding that sexual orientation discrimination is not sex discrimination under Title VII of the Civil Rights Act and granted a rare rehearing en banc (by the full court).

In Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. July 28, 2016), the three-judge panel stated that circuit precedent compelled its ruling, even though it found merit for Title VII coverage for persons discriminated against because of their sexual orientation.

Let’s recall the court’s language in its ruling, shall we?

The court labeled the harassment suffered by the plaintiff as “appalling” and “disgusting conduct.” The court emphasized a recent EEOC decision that concluded “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.”

It decried the utter illogic of entertaining gender non-conformity claims under Title VII where the non-conformity involves style of dress or manner of speaking, but not when the gender non-conformity involves the “sine qua non” of gender stereotypes—with whom a person engages in sexual relationships.

“And we can see no rational reason to entertain sex discrimination claims for those who defy gender norms by looking or acting stereotypically gay or lesbian (even if they are not), but not for those who are openly gay but otherwise comply with gender norms,” the court concluded.

And yet. The Seventh Circuit still ruled for the defendant, lamenting that it lacked authority to remediate the situation because the court of appeals had previously ruled that sexual orientation was not covered under Title VII.

Huh? What? Isn’t harassment based on gender or gender stereotypes unlawful?


After all, as I wrote about at length here, in Price Waterhouse v. Hopkins, the U.S. Supreme Court held that allegations of gender identity and transgender discrimination based on non-conformance with gender norms and outdated stereotypes necessarily involve sex discrimination.  The EEOC made the same determination in Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015), stating that the plaintiff’s claim of discrimination on the basis of sexual orientation necessarily states a claim of discrimination on the basis of sex under Title VII.

But, and as Rich wrote about here, although the court of appeals called for a “bold” new look at whether Title VII includes sexual orientation, and purportedly gave the issue a “bold” new look – it ultimately simply stood back wringing its hands and concluded that it was nonetheless forced to uphold the longstanding, antiquated, and unjust precedent.

Then he predicted that the Seventh Circuit would grant a rehearing—and they did!

Now, oral argument for the rehearing is scheduled for November 30, 2016. I wonder if the election weeks before that date will play a part in the court’s ruling. I wonder whether the court will stop wringing its hands and declare this sexual harassment under Baldwin and its progeny. I wonder whether I can find those really delicious sea salt/turbinado sugar almonds at Trader Joe’s…They are sooo good, right?!

But mostly, I wonder whether rationality, logic, common sense, and equality will rule the day.

We will monitor and provide an update after a final Seventh Circuit decision.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.