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Tuesday, April 11, 2017

Ind. Decisions - Still more on: En banc 7th Circuit reverses Hively v. Ivy Tech

Updating this ILB post from April 5th, I've pulled quotes from several analyses that highlight the significance of Ivy Tech's decisions not to appeal the 7th Circuit decision in Hively.

From JDSupra Business Advisor, an April 7th article by Allison Sues of SmithAmundsen LLC headed "Seventh Circuit Issues Landmark Decision Holding that Title VII Prohibits Discrimination Based on Sexual Orientation":

On April 4, 2017, the United States Court of Appeals for the Seventh Circuit, sitting en banc, held that discrimination based on sexual orientation is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.

The seventh circuit decision is significant as the first of its kind. The United States Supreme Court has never ruled whether Title VII prohibits discrimination based on sexual orientation, and the seventh circuit, as well as the other United States Circuit Courts of Appeals had previously established a long line of precedent holding that claims alleging sexual orientation discrimination fail to state a claim under Title VII. * * *

Ivy Tech has indicated that it will not appeal the decision to the Supreme Court and instead plans to defend the case on its merits following the remand to the trial court. Therefore, Hively will be the law of Illinois, Indiana, and Wisconsin until a different sexual orientation discrimination case makes it way to the Supreme Court – an event likely to happen now that there is clear division between the circuit courts on this issue.

Employers in Illinois and Wisconsin should already maintain policies prohibiting discrimination based on sexual orientation because Illinois and Wisconsin state law prohibit this type of discrimination. Nevertheless, all employers, especially private employers in Indiana who are not currently bound by a state sexual orientation non-discrimination law, should ensure that all employee handbooks, non-discrimination policies, and job application forms explicitly state that the company will not discriminate based on sexual orientation, and should train management and human resources personnel on the same. Following the reasoning of Hively, employers should be cautious to guard against discrimination or harassment based not only on sexual orientation, but also sexual identity.

From Lexology, an article by Laura B. Bacon, Brittany A. Bogaerts and Brian V. Alcala of Nixon Peabody LLP headed "Seventh Circuit extends Title VII protections to sexual orientation discrimination: what employers need to know":
The Seventh Circuit Court of Appeals became the first federal appeals court to hold that Title VII of the Civil Rights Act of 1964 protects against workplace discrimination on the basis of sexual orientation. Here’s what employers need to know about the landmark ruling. * * *

The immediate legal impact of this ruling will vary state-by-state. Of the three states falling within the Seventh Circuit’s jurisdiction (Illinois, Wisconsin, Indiana), Indiana is the only state that does not already offer state law protection for sexual orientation discrimination. In both Illinois and Wisconsin, state law has long prohibited employers from engaging in discrimination on the basis of sexual orientation. In 1981, the Wisconsin legislature added protection for sexual orientation discrimination to its Fair Employment Law. In 2005, the Illinois legislature followed suit, adding sexual orientation as a protected class to the Illinois Human Rights Act.

As a result, the Hively decision will most directly affect employers in Indiana, adding legal protection for sexual orientation discrimination that their employees did not have previously. For employers in other states, however, the Seventh Circuit’s decision does not automatically create federal protection for sexual orientation discrimination across the country. The prohibition of sexual orientation discrimination will continue to primarily be governed by state and local law.

Posted by Marcia Oddi on April 11, 2017 11:17 AM
Posted to Ind. (7th Cir.) Decisions