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Seventh Circuit Court of Appeals Rules Title VII Prohibits Discrimination Based On Sexual Orientation

On April 4, 2017, the Court of Appeals for the Seventh Circuit, which covers Illinois, Indiana, and Wisconsin, became the first federal appellate court to hold that Title VII's prohibition of discrimination because of sex includes discrimination on the basis of sexual orientation. The case is Hively v. Ivy Tech Community College, and the ruling was an en banc decision, meaning that all of the judges on the Court heard the case. (Appeal decisions are normally decided by a three judge panel, but occasionally a case will be heard by all judges on the court.)

The Court observed that courts have recognized gender stereotyping, also described as gender non-conformity, as a form of sex discrimination for years. Drawing a line between such claims and sexual orientation claims has become difficult and has led to "a confused hodge podge of cases." In addition, per the Court, all gay, lesbian and bisexual persons "fail to comply with the sine qua non of gender stereotypes - that all men should form intimate relationships only with women, and all women should form intimate relationships only with men."

In addition, given the U.S. Supreme Court's ruling in Obergfell v. Hodges, the current state of the law "creates a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act." Last but not least, the Court was concerned that the current state of the law creates tension with a longstanding rule in the area of race discrimination. A 1967 U.S. Supreme Court, Loving v. Virginia established that discriminating against a person based on the race of a person they associate with, for example their spouse, is a form of race discrimination. The Hively Court noted that failing to recognize the same principle with regard to sex discrimination would create a "sharp tension" in the law.

In addressing the fundamental question of whether discrimination based on sexual orientation constituted discrimination on the basis of sex under Title VII, the Court relied primarily on two analytical principles. The first is to ask the following question: "holding all other things constant and changing only her sex" would Hively have been treated the same way? The Court found that the answer was no. Had she been male and had an intimate relationship with a female, she would not have been treated the same. Therefore, the discrimination against Hively (assuming the facts in her Complaint were true) took place because of sex.

The second analysis is the same as the Loving v. Virginia case that applied to race discrimination. Discriminating against someone because of the sex of the person with whom they have intimate relations is a form of sex discrimination.

Notably, a panel of the Court of Appeals for the Eleventh Circuit, which covers Alabama, Florida, and Georgia, ruled in March of 2017 that Title VII does not prohibit discrimination on the basis of sexual orientation. The plaintiff in that case may seek en banc review as well, or may appeal to the U.S. Supreme Court. It seems likely that, sooner or later, this issue will make its way to the Supreme Court where the issue will be settled.


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