On April 4, 2017, the 7th Circuit held that employment discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. 4/4/2017) (rehearing en banc). This case was filed by an openly lesbian teacher who alleged that her employer failed to promote her or renew her contract on the basis of her sexual orientation. The district court dismissed her complaint on the ground that Title VII’s prohibition against sex discrimination does not include discrimination on the basis of sexual orientation. On appeal, in an earlier decision, the 7th Circuit affirmed the district court, but later agreed to rehear the issue en banc. The 7th Circuit is the first federal appellate court to hold that sexual orientation discrimination is actionable under Title VII.
Title VII prohibits employment discrimination on the basis of a person’s race, religion, color, national origin or sex. When the statute was enacted in 1964, it did not include a specific prohibition against discrimination on the basis of a person’s sexual orientation. And for years the appellate courts understood the prohibition against sex discrimination to exclude sexual orientation. The United States Supreme Court has never reached the issue. The 7th Circuit based its decision on four Supreme Court precedents: (1) employment discrimination on the basis of gender stereotyping is an actionable form of sex discrimination under Title VII; (2) same-sex sexual harassment is an actionable form of sex discrimination under Title VII; (3) discrimination on the basis of the race with whom a person associates is an actionable form of race discrimination under Title VII (and, by analogy, discrimination on the basis of the sex with whom a person associates is an actionable form of sex discrimination under Title VII); and (4) same-sex couples enjoy a constitutionally protected right of marriage. The Supreme Court has already recognized, as actionable forms of sex discrimination, these analogous types of gender-related discrimination, even though they are not specifically listed in Title VII. The holding that sex discrimination includes sexual orientation discrimination is a logical extension of these interpretations, suitable for our changing times. The 7th Circuit ruled that the district court should not have dismissed the complaint for failure to state a claim, reversed the judgment of the district court, and remanded the case for further proceedings. The 7th Circuit’s decision may be reviewed by the Supreme Court.