Seventh Circuit Court Determines That Title VII Covers Sexual Orientation Discrimination

By Kamer Zucker Abbott

May 16, 2017

In what many are calling a landmark decision, the Seventh Circuit Court of Appeals recently determined that Title VII of the Civil Rights Act bars discrimination on the basis of sexual orientation.  The Seventh Circuit Court is the first federal appeals court to determine that Title VII's prohibition against "sex" discrimination includes sexual orientation.  The Seventh Circuit hears federal cases from Wisconsin, Illinois and Indiana.

Kimberly Hively, who is openly lesbian, worked as a part-time adjunct professor at Ivy Tech Community College in South Bend, Indiana. Over the course of several years, she unsuccessfully applied for six full-time positions.  Finally, in 2014, her part-time contract was not renewed.  Hively filed a lawsuit in federal court, arguing that she was denied promotions and terminated because of her sexual orientation.  The trial court and an initial appellate panel of the Seventh Circuit Court decided that Hively's claims failed because Title VII does not prohibit discrimination based upon sexual orientation.  Those conclusions were consistent with the opinions of many other federal courts on this issue.

Hively asked for the matter to be reconsidered by the entire Seventh Circuit Court, and she was successful in convincing 8 out of 11 judges that Title VII covers sexual orientation discrimination. The Court explained that over the years, the U.S. Supreme Court has flushed out the concept of "sex discrimination" such that it now encompasses much more than Congress originally meant to prohibit.  The Court explained:  "Indeed, in the years since 1964, Title VII has been understood to cover far more than the simple decision of an employer not to hire a woman for Job A, or a man for Job B. The Supreme Court has held that the prohibition against sex discrimination reaches sexual harassment in the workplace, including same-sex workplace harassment; it reaches discrimination based on actuarial assumptions about a person's longevity; and it reaches discrimination based on a person's failure to conform to a certain set of gender stereotypes." The Court concluded that "the time has come to overrule our previous cases" on this issue and embrace the "common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex."