On April 4, 2017, the Seventh Circuit Court of Appeals (in Hively v. Ivy Tech Community College of Indiana) became the first federal appellate court to rule that sexual orientation discrimination in the workplace is included within the term “sex” under Title VII of the Civil Rights Act of 1964. Therefore, it is finally illegal under federal law for employers to discriminate against gays and lesbians… at least in the Seventh Circuit (Illinois, Indiana, and Wisconsin).
For decades, courts have refused to rule that sexual orientation discrimination is an illegal form of discrimination in the workplace, the logic being that the statute prevents “sex” (but not “sexual orientation”) discrimination. However, the Seventh Circuit finally recognized that the change in how courts, including the U.S. Supreme Court, have interpreted and applied other laws, justify a change in this antiquated rule. The court specifically pointed out that, after the 2015 U.S. Supreme Court decision of Obergefell v. Hodges, which recognized the rights of same-sex couples to marry, “bizarre results ensue from the current regime” such that it creates “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.” It also flipped the standard prior argument against protection, and noted that it “would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’” Indeed, “sexual harassment” has been considered illegal in the workplace since the mid 1980’s based on the term “sex” in Title VII, so why not “sexual orientation?” Finally, the court concluded by taking into account “common-sense reality that it is actually impossible discriminate on the basis of sexual orientation without discriminating on the basis of sex.”
This decision is a significant step in the right direction and finally gives an additional class of workers much needed protection. It is quite possible that other appellate courts will follow in this court’s logic, although whether the ultra-conservative Fifth Circuit (covering Texas) will follow is a completely different question. It is probably still necessary for the U.S. Supreme Court to directly address the issue and it will hopefully do so soon.
This article is for general information purposes and is not to be construed as specific legal advice.