Seventh Circuit: Sexual Orientation Discrimination Unlawful Under Title VII

Yesterday, the Seventh Circuit Court of Appeals held 8-3 that discrimination on the basis of sexual orientation is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. Hively v. Ivy Tech Community College of Indiana (U.S. 2017). The court’s decision accords with the Equal Employment Opportunity Commission’s (EEOC) long-held enforcement position. However, because it contradicts a recent panel decision from the Eleventh Circuit, it sets up a circuit split that could ultimately require resolution by the U.S. Supreme Court.

Indiana teacher Kimberly Hively alleged that Ivy Tech Community College failed to hire her as a full-time instructor and eventually terminated her because she is a lesbian. She filed a charge of discrimination with the EEOC, received a right-to-sue letter, and filed suit against the college. A three-judge panel in the Seventh Circuit held against Hively in August of 2016, but her appeal for a rehearing before the full court was granted, leading to yesterday’s landmark decision.

“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,” wrote Chief Judge Diane Wood. “That means that it falls within Title VII’s prohibition against sex discrimination, if it affects employment in one of the specified ways.”

Judge Diane S. Sykes dissented, while Judges Joel Flaum and Richard Posner authored concurring opinions.

While a Seventh Circuit opinion is not binding outside Illinois, Indiana, and Wisconsin, employers should err on the side of caution, especially in light of state and local laws that extend protection to sexual orientation. The EEOC’s guidance on LGBT workers provides useful information for employers, who are encouraged to contact MSEC with any questions.