04.11.2017 The Seventh Circuit’s Big Decision: Sexual Orientation Discrimination Is Prohibited By Title VII
On April 4, 2017, the United States Court of Appeals for the Seventh Circuit (covering Illinois, Indiana, and Wisconsin), sitting en banc, handed down what is being called a monumental decision in the development of legal protections for the LGBTQ community. For the first time, a Federal appellate court has ruled unequivocally that discrimination against an employee based on his or her sexual orientation is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964.
The Facts and Legal History of Hively v. Ivy Tech Community College
Kimberly Hively began working as a part-time math professor at Ivy Tech Community College in 2000. In December 2013, Ms. Hively filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) claiming that Ivy Tech had discriminated against her because of her sexual orientation. Specifically, the school had refused to interview her for any of the six full-time positions that had become available during her time working at the college, despite her having the necessary qualifications for full-time employment. Ms. Hively alleged that the school did not consider her for these positions and ultimately terminated her employment because she is lesbian.
Following the completion of the administrative procedure, Ms. Hively sued Ivy Tech in August 2014. A Federal district court in Indiana dismissed her case, though, on the basis that Title VII of the Civil Rights Act of 1964 does not protect employees from discrimination based on sexual orientation. While Title VII protects against sex discrimination, the Court concluded that “Congress intended the term ‘sex’ to mean ‘biological male or biological female,’ and not one’s sexuality or sexual orientation.”
In April 2015, Ms. Hively appealed the lower court’s decision to the United States Court of Appeals for the Seventh Circuit, seeking reversal of the lower court’s decision. However, the three-judge panel upheld the prior decision and found that Title VII did not protect individuals on the basis of sexual orientation.
Ms. Hively requested a rehearing of the case by the entire court, and, on October 11, 2016, that request was granted. The full eleven-member Seventh Circuit Court of Appeals heard arguments in the case on November 30, 2016. Counsel for Ms. Hively argued at the hearing that sexual orientation is a form of sex discrimination, which is already banned under federal law.
Sitting en banc, the Seventh Circuit Court of Appeals held that “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” The Court reached this decision by relying on a “common sense reality,” and noting that the line between sexual orientation and sex has become increasingly blurred over time. Importantly, the Court’s majority opinion gave no mind to the dissenters’ objection rooted in the fact that Title VII’s language does not expressly designate sexual orientation as a protected characteristic. The majority said this fact was “neither here nor there.” The Court ultimately held that “[t]he logic of the Supreme Court’s decision, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.”
What makes Hively v. Ivy Tech Community College a notable case is that the Seventh Circuit Court of Appeals is the highest court in the country to rule that Title VII prohibits employers from discriminating against employees because of their sexual orientation. To be sure, other courts before the Hively decision, including those from the EEOC, have taken this same position, but none has had an impact as substantial as the Seventh Circuit’s recent ruling.
Federal appellate courts typically have been much less willing to read Title VII as protecting employees against sexual orientation discrimination. In fact, the Eleventh Circuit held in March 2017 that discrimination on the basis of an employee’s sexual orientation is not prohibited under Title VII. The split in appellate court decisions on this issue will likely have to be resolved by the U.S. Supreme Court, unless Congress takes action and adds sexual orientation as a characteristic protected by Title VII – a move that is unlikely to occur under the current administration.
There is much uncertainty as to how those who identify as homosexual will be protected under Title VII in the future, notwithstanding the Seventh Circuit’s decision in Hively. Private employers in states other than Wisconsin, Indiana, or Illinois are not mandated by federal law to enact and enforce policies preventing workplace discrimination based on sexual orientation. Nonetheless, many employers have taken steps to promote inclusive, non-discriminatory environments by acknowledging protection and non-discrimination based on sexual orientation, gender identity and gender expression in their employment policies. For additional ideas on implementing non-discrimination policies in the workplace, please see our recent article here.
 No. 15-1720 (7th Cir., Apr. 4, 2017).
 Hamner v. St. Vincent Hosp. and Health Care Ctr., Inc., 224 F.3d 701, 704 (7th Cir. 2000).
 See Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641, at *5, *10 (July 16, 2010).
 Jameka Evans v. Georgia Reg. Hosp., No. 15-15234 (11th Cir., Mar. 10, 2017).