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With its recent en banc decision in Hively v. Indy Tech. Cmty. Coll. of Ind., 2017 WL 110393 (7th Cir. 2017), the Seventh Circuit became the first federal appellate court to hold that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation. In doing so, the Seventh Circuit broke from its own precedent, and the precedent of every other federal appellate court, to address the issue. 

The plaintiff in Hively alleged that the College failed to promote her to a full-time professor, and then refused to renew her part-time contract, because she was a lesbian. Both the district court and a panel of the Seventh Circuit rejected her claim, finding that Title VII did not prohibit discrimination based on sexual orientation.

The Seventh Circuit agreed to re-hear the case en banc and reversed the panel’s decision. The court began its analysis by pointing out that “the goal posts have been moving” on what constitutes sex discrimination under Title VII since it was passed over forty years ago. In support, the Seventh Circuit cited numerous Supreme Court decisions interpreting Title VII to “cover more than the simple decision of an employer not to hire a woman for Job A, or a man for Job B,” including Oncale v. Sundowner Offshore Svs., 523 U.S. 75 (1998) (same sex harassment is a form of prohibited sex discrimination), Meritor Sav. Bank, FSB v. Union, 477 US 57 (1986) (sexual harassment held to be a form of sex discrimination), City of Los Angeles Dep’t of Water and Power v. Manhart, 435 US 702 (1978) (discrimination based on actuarial assumptions about a person’s longevity is prohibited sex discrimination), and Price Waterhouse v. Hopkins, 490 US 228 (1989) (gender stereotyping falls within Title VII’s prohibition against sex discrimination).  The Seventh Circuit emphasized that it had to decide what the correct rule of law is in light of these decisions, “not what someone thought it meant 1, 10, or 20 years ago...” 

The Seventh Circuit ultimately held that discrimination based on sexual orientation is a form of sex discrimination protected by Title VII, explaining as follows:

Any discomfort, disapproval, or job decision based on the fact that the complainant – woman or man – dresses differently, speaks differently, or dates or marries a same sex partner, is a reaction purely and simply based on sex. That means that it falls within Title VII’s prohibition against sex discrimination, if it affects employment in one of the specified ways.

The Seventh Circuit’s decision follows the EEOC’s 2015 ruling that Title VII’s prohibition on sex discrimination encompassed discrimination based on sexual orientation. Baldwin v. Foxx, 2015 WL 439 7641 (July 15, 2015).

The Hively decision applies only to employers in the Seventh Circuit (Indiana, Illinois, and Wisconsin). To date, all other Circuits have rejected the notion that Title VII prohibits discrimination based on sexual orientation. Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999); Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005); Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 290 (3d Cir. 2009); Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138, 143 (4th Cir. 1996); Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979); Kalich v. AT&T Mobility, LLC, 679 F.3d 464, 471 (6th Cir. 2012); Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989); Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005); Fredette v. BVP Mgmt. Assocs., 112 F.3d 1503, 1510 (11th Cir. 1997). 

The dispute over whether Title VII prohibits discrimination based on sexual orientation will likely be decided by the Supreme Court. In the interim, employers can expect the EEOC to continue to assert that Title VII prohibits such discrimination and that court cases ultimately will turn on the precedent in that particular Circuit.