The court revived the complaint of plaintiff Kimberly Hively in which she alleged that she was fired from a part-time job and not hired for multiple full-time positions because she is a lesbian. The majority opinion, written by Judge Diane Wood, reasoned that if all facts were the same but her sex—that is, if plaintiff had been a man married to a woman—she would have been hired, and thus had suffered “paradigmatic sex discrimination.” Hively at *5. The court also held that sexual orientation discrimination “represents the ultimate case of failure to conform to the female stereotype”. Id. (Dissent filed).
The Seventh Circuit, sitting en banc, held that sexual orientation discrimination in employment is a subset of sex discrimination, and thus barred by Title VII. Hively v. Ivy Tech Comm. Coll. of Indiana, No. 15-1720, (7th Cir. April 4, 2017).
The court revived the complaint of plaintiff Kimberly Hively in which she alleged that she was fired from a part-time job and not hired for multiple full-time positions because she is a lesbian. The majority opinion, written by Judge Diane Wood, reasoned that if all facts were the same but her sex—that is, if plaintiff had been a man married to a woman—she would have been hired, and thus had suffered “paradigmatic sex discrimination.” Hively at *5. The court also held that sexual orientation discrimination “represents the ultimate case of failure to conform to the female stereotype”. Id. (Dissent filed).
0 Comments
Plaintiff-employee brought a Title VII claim alleging that her employer denied her full time employment as adjunct professor and failed to promote her to various positions on account of her sexual orientation. Hively v. Ivy Tech Community College, S. Bend, No. 15-1720 (7th Cir. July 28, 2016). The employer moved to dismiss for failure to state a valid claim. The District Court granted the motion and the Seventh Circuit affirmed. The Seventh Circuit acknowledged that EEOC rulings indicate that sexual orientation discrimination is form of actionable sex discrimination claim under Title VII and acknowledged the difficulty in discerning difference between actionable gender norm discrimination from non-actionable sexual orientation discrimination under Title VII. However, the Seventh Circuit reaffirmed its prior case law in finding that plaintiff's sexual orientation discrimination claim is beyond scope of Title VII, since Title VII's prohibition on discrimination based on "sex" extends only to discrimination based on person's "gender" and not on person's "sexual orientation." Today, June 14, 2016, the U.S. Department of Labor issued a rule to revise sex discrimination guidelines for federal contractors. The rule clarifies protections against compensation discrimination, sexually hostile work environments, discrimination based on pregnancy, childbirth, or related medical conditions. It also updates guidelines to prohibit contractors from granting child care leave to women but not men. Further, it clarifies that Title VII’s prohibition of employment discrimination based on sex encompasses discrimination based on gender identity, unlawful sex stereotypes, and transgender status. These rules have been largely unchanged since 1970. A fact sheet and the text of the Rule is at https://s3.amazonaws.com/public-inspection.federalregister.gov/2016-13806.pdf. Igasaki, a former Illinois state employee, sued the Illinois Department of Financial and Professional Regulations (IDFPR) for sex discrimination and retaliation, among other things. Igasaki v. Ill. Dep't of Financial and Professional Regulation, et al., No. 15 C 3693, (N.D. Ill., January 20, 2016). Igasaki claimed that his homosexuality was a factor in his firing, and further asserted that the factor resulted in sex discrimination. Defendants moved to partially dismiss the complaint which included the sex discrimination claim. Judge Andrea Wood dismissed the sex discrimination claim without prejudice, explaining that sexual orientation “is not a protected class under Title VII.” Hamner v. St. Vincent Hospital & Health Care Center Inc., 224 F.3d 701 (7th Cir. 2000). However, Title VII protects victims of “sex stereotyping” or “gender stereotyping.” Hamm v. Weyauwega Milk Products Inc., 332 F.3d 1058 (7th Cir. 2003). Igasaki alleges he was criticized for being “too soft” and “not aggressive enough”but only alleges these type of comments only after Forester learned he is gay. Thus, those complaints are on the basis of his sexual orientation. While Title VII may not protect against sexual orientation discrimination, it should be noted that the Illinois Human Rights Act prohibits sexual orientation discrimination. |
As a Chicago employment lawyer, the firm focus primarily on employment law. Archives
June 2017
Categories
All
|