Title VII of the Civil Rights Act of 1964 provides the foundation for the federal prohibition of discrimination and harassment on the basis of race, color, religion, sex, or national origin in employment. See 42 U.S.C. 2000e-2(a). But notwithstanding the many developments in the area of LGBT rights over the last several years, it remains an open question under federal law whether employers can discriminate against employees on the basis of sexual orientation. That is, it has been unclear whether Title VII prohibits sexual orientation discrimination.
Last month, however, the United States Court of Appeals for the Seventh Circuit, sitting en banc, rendered a landmark decision in which it concluded “that discrimination on the basis of sexual orientation is a form of sex discrimination” covered by Title VII. Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. April 4, 2017). The Seventh Circuit is the first federal appeals court to rule in this manner and in doing so expressly contradicted recent decisions from the Second and Eleventh Circuits, setting up a potential showdown in the Supreme Court to finally resolve the issue.
The case itself is fairly straightforward. Ms. Hively, who is openly gay, claimed that Ivy Tech Community College, her employer, denied her a full-time teaching position and refused to renew her employment contract based on her sexual orientation. The federal district court initially dismissed the case and a three-judge panel of the Seventh Circuit affirmed based on existing precedent that sexual orientation was not a protected class under Title VII. But the Seventh Circuit agreed to reconsider the issue en banc and reversed, finding that Title VII does, in fact, prohibit discrimination on the basis of sexual orientation.
Employers operating in the Seventh Circuit (e.g., Illinois, Indiana, and Wisconsin) should operate under the assumption that Title VII prohibits discrimination on the basis of sexual orientation. At least unless and until the Supreme Court determines otherwise. For the rest of the country, the law, at least in terms of the scope of Title VII, is not settled yet and employers would be wise to carefully consider the issue as they make employment decisions.