Seventh Circuit: Title VII Prohibits Employment Discrimination on Basis of Sexual Orientation

On April 4, 2017, the United States Court of Appeals for the Seventh Circuit ruled for the first time that Title VII of the Civil Rights Act of 1964 makes it unlawful for employers to discriminate on the basis of sexual orientation.

The Seventh Circuit’s en banc decision in Hively v. Ivy Tech Community College of Indiana was the first such ruling of its kind from a federal appellate court. The Court’s majority opinion held that Title VII’s ban on sex discrimination necessarily includes sexual orientation. The Court noted that it is impossible to discriminate on the basis of sexual orientation without also discriminating on the basis of sex. The Court’s opinion lines up with that of the Equal Employment Opportunity Commission, which had embraced this interpretation in 2015.

The Hively opinion places the Seventh Circuit, which oversees federal district courts in Illinois, Indiana and Wisconsin, at odds with other circuit courts of appeal on this issue. For the moment, at least, the ruling is only binding on Title VII-regulated employers in those states. Although the United States Supreme Court has yet to directly confront this issue of sexual orientation discrimination under Title VII, given the conflict between the circuits, an eventual appeal to the highest court of the land now appears likely.

We will continue to monitor developments in this area and update you as new information becomes available. For more information, contact SS+D’s Labor and Employment Practice Group at kulrich@ssdlaw.com, in our Dayton office at 937.222.2052 or in our West Chester office at 513.644.8125.

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