Columns_111968469In an en banc decision issued yesterday, the United States Court of Appeals for Seventh Circuit held that Title VII’s prohibition on discrimination on the basis of sex includes discrimination on the basis of sexual orientation.  See Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. 2017).  In doing so, it became the first court of appeals to reach this conclusion, disagreeing with contrary decisions from multiple other circuits.  While this issue could very well be taken up by the Supreme Court of the United States, any Supreme Court decision would likely not come before early 2018.  Absent expedited action by the Supreme Court or a stay of the ruling, this will remain the law in the Seventh Circuit for the foreseeable future.

Title VII makes it illegal for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex[.]”  42 U.S.C. § 2000e-2(a)(1).  As the court acknowledged in the beginning of its opinion, virtually all courts of appeals shared the Seventh Circuit’s prior view that the term “sex” as used in Title VII “implies that it is unlawful to discriminate against women because they are women and against men because they are men,” and does not speak to discrimination based on sexual orientation.  Op. at 3-4. Continue Reading Seventh Circuit Holds That Title VII Prevents Sexual-Orientation Discrimination—Will More Courts Follow? And Is Title IX Next?

Hospital building exterior and hospital signThe U.S. Court of Appeals for the Third Circuit held recently that Title IX of the Education Amendments of 1972 (“Title IX”)—which prohibits sex discrimination in the “education programs or activit[ies]” of entities receiving federal financial assistance—can apply to residency programs at hospitals. The ruling may profoundly impact how hospitals respond to complaints of sex discrimination (including sexual harassment) by resident physicians and necessitate that hospitals comply with federal Title IX regulations and guidance. The ruling also opens the door for residents who experience sex discrimination to sue under Title IX, thereby avoiding the complex administrative exhaustion process required to file a similar claim under Title VII of the Civil Rights Act of 1964, which generally governs sex discrimination in the workplace. Please visit our website to read the legal alert authored by Derek Teeter and Lorinda Holloway.

Gavel On Rainbow FlagAs we noted was a possible outcome in our prior analysis of the Trump Administration’s withdrawal of the Obama-era guidance on facilities use by transgender students, the Supreme Court has remanded Gloucester County School Board v. G.G. without issuing a decision.  Prior to this remand order, the Court was set to decide whether Title IX required schools to allow access to sex-segregated facilities according to each student’s “internal sense of gender” as opposed to their “biological gender,” as specified in the school policy at issue.  The Supreme Court’s views on that topic will remain unknown until (and if) the Court elects to review another case presenting the same question.

After the Trump Administration withdrew the guidance, the Solicitor General’s office sent a letter to the Supreme Court to inform it of the policy change.  The Court then ordered both parties in the case (the student and the school district) to submit letters expressing views on how the case should proceed.  Both the school district and the student urged the Court to retain the case, hear oral argument, and decide the merits.  Continue Reading Supreme Court Remands Case Involving Facilities Use by Transgender Students Without Decision

Choosing your wayIn a joint letter issued February 22, 2017, the Departments of Education (ED) and Justice (DOJ) withdrew prior Title IX guidance from the Obama administration that required schools receiving federal funding to allow students to use sex-segregated facilities according to their gender identity, as opposed to their anatomical birth sex.

Obama-Era Transgender Guidance WithdrawnThe Obama administration provided the (now-revoked) guidance through two letters. First, on January 7, 2015, ED’s Office for Civil Rights (OCR) issued an opinion letter in response to a lawyer’s inquiry about a specific Virginia school district policy directing that students must use facilities corresponding to their anatomical birth sex. The letter stated that Title IX protected against discrimination based on sex, including gender identity, and that students must be allowed to use sex-segregated facilities according to their gender identity. On May 13, 2016, OCR and DOJ issued a Dear Colleague Letter more broadly confirming the departments’ view that Title IX required schools to allow access to sex-segregated facilities according to each student’s gender identity.

Continue Reading Trump Administration Withdraws Guidance on Use of Facilities by Transgender Students

Diversity_122512350On Friday, February 10, 2017, the Trump Administration informed the Fifth Circuit that the United States will no longer challenge the injunction against enforcement of the joint Department of Justice and Department of Education guidance  on the treatment of transgender students that was issued last year. We expect further developments in the coming weeks and months, but for now: Continue Reading Gender Identity Shift: Federal Government No Longer Challenging Injunction on Transgender Student Guidance

Late last week, the Supreme CouToilet signsrt of the United States granted the petition for a writ of certiorari in Gloucester County School Board v. G.G. on two of the three questions presented for review.  Thus, later this term (prior to the end of June) the Supreme Court will likely resolve a growing split among courts of appeals as to whether schools receiving federal funding are required—pursuant to Department of Education (“ED”) guidance interpreting Title IX—to permit students to use restroom facilities according to their gender identity, irrespective of their anatomical gender.  Adding to the confusion on this issue, a federal district court in Texas issued a nationwide injunction prohibiting ED from enforcing its guidance on this issue. Continue Reading Supreme Court to Review Department of Education’s Requirement on Restrooms for Transgender Students

The Federal Communications Commission (FCC) recently provided additional guidance about when text messages and automated calls initiated by colleges and universities are exempt from liability under the federal Telephone Consumer Protection Act (TCPA). Below is a brief background of relevant portions of the TCPA, a summary of new guidance from the FCC, and a few open issues to consider. Continue Reading Texts to Students: New Developments and Open Questions Under the Telephone Consumer Protection Act