A recent, potentially precedential opinion from the federal Seventh Circuit Court of Appeals could transform the employment law landscape across the country. The case, Hively v. Ivy Tech Community College, involves a female college professor who argues that she was fired because of her sexual orientation; she is an open lesbian.
Though sexual orientation discrimination hasn't been regulated at the same level via federal legislation that gender discrimination has, the court found that sexual orientation bias is, in itself, a form of prohibited gender-based discrimination because it relies upon the practice of sex stereotyping.
Background of the case
The Hively case saga began with Professor Hively's hiring as a part-time professor in 2000. Between 2009 and 2014, Hively applied for six full-time professorship positions with Ivy Tech but was denied. In July of 2014, her contract was not renewed, and she was let go. Hively believed, and stated in her complaint to the Equal Employment Opportunity Commission, that she was being discriminated against because of her sexual orientation. She filed suit shortly after receiving a "right to sue" letter from the EEOC.
Ivy Tech's initial response to Hively's complaint was to deny the allegations on the basis that sexual orientation discrimination is not protected under Title VII of the Civil Rights Act of 1964. That argument was initially successful at the trial-court level, and Hively's pro se district court case was dismissed.
Hively appealed the district court's decision with assistance from noted LGBTQ rights advocacy organization Lambda Legal.
Stereotyping as discrimination
The Hively court found that sexual orientation discrimination in the workplace, though not expressly addressed under current federal laws, is estopped because it relies on prohibited gender- and sex-based stereotyping. Specifically, current statutes and case law state that it is illegal for an employer to act in a way that punishes an employee because he is a man or she is a woman.
Because Hively's sexual orientation itself goes against traditional gender "norms" (i.e., that women should prefer men and vice versa), taking action based on that is, the court found, a form of prohibited gender discrimination in the form of unfair sex stereotyping.
Sex stereotyping exists when one gender is ascribed traits or properties based on characteristics that some members have. Examples include saying that all women are emotional and refusing to put a woman in a leadership position as a result, or that all men are physically strong and only hiring men for tasks that involve manual labor. Acting on these and other stereotypes has been well-established as a prohibited form of gender-based discrimination.
Essentially, stereotyping is the very definition of gender bias in action. For employers, it is vitally important, to avoid running afoul of state and federal employment laws, that there are clear, defined policies in place regarding legitimate reasons for hiring, promotion and firing, and that all employment-related decisions are made based on those.