The full U.S. Court of Appeals for the Seventh Circuit, in a split ruling that includes a lengthy dissent, has become the first federal appeals court to hold that Title VII of the Civil Rights Act of 1964 (Title VII) bars discrimination on the basis of sexual orientation.
The decision by the court majority in Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. April 4, 2017), endorses the expansive interpretation of Title VII adopted in recent years by the Equal Employment Opportunity Commission (EEOC) that discrimination under Title VII on the basis of sex encompasses sexual orientation. Every other appeals court to have considered the question — including very recently the Eleventh and Second Circuits in rulings discussed briefly below — have held that Title VII’s definition of “sex” cannot be stretched to the point of protecting against sexual orientation discrimination outright, especially in light of the fact that Congress has thus far rejected attempts to amend Title VII to add sexual orientation as a protected class.
The Seventh Circuit’s ruling was far from unanimous. Only five of 11 judges fully joined the majority opinion; three concurring judges agreed with the ultimate decision, but would have based it on different rationales. The three remaining judges signed onto a scathing, 28-page dissent. That, coupled with the Seventh Circuit’s acknowledgment that its decision now creates a notable split in the courts, increases significantly the chances that the Supreme Court — in the absence of any intervening action by Congress — may soon be called upon to resolve the issue.
A copy of the Seventh Circuit’s ruling in Hively is available here.
Members of the Equal Employment Advisory Council (EEAC) can read more here.