McLeod Witham

Federal Court Prohibits Sexual Orientation Discrimination For The First Time


California’s FEHA already forbids employers from basing employment decisions upon sexual orientation.

            On April 4, 2017, the United States Court of Appeals for the Seventh Circuit became the first federal appellate court to rule that sexual orientation discrimination is prohibited by Title VII.  In Hively v. Ivy Tech Community College of Indiana, the Court ruled that sexual orientation discrimination is a form of unlawful sex discrimination against those who do not conform to traditional gender roles in their relationships.

While Hively is likely to have wide-ranging implications for many employers across the country, the impact of the decision on California employers should be quite minimal.  This is because California’s Fair Employment and Housing Act (“FEHA”) has prohibited employers from discrimination or harassment on the basis of sexual orientation since 1993.  California law also protects workers from discriminatory conduct on the basis of their gender (including gender identity and expression) and sex (including pregnancy, childbirth, and breastfeeding status).

California employers must take steps to ensure that their anti-discrimination policies and trainings clearly prohibit harassment and discrimination on the basis of sexual orientation, sex, gender, and all other protected categories.

The Hively opinion can be viewed here.