In a landmark ruling on April 4, 2017, the United States Court of Appeals for the Seventh Circuit, sitting en banc, became the first federal appellate court to officially recognize a discrimination claim under Title VII based solely on the plaintiff’s sexual orientation. The Court’s decision in Hively v. Ivy Tech Community College of Indiana reflects a groundswell of recent cases questioning whether sexual orientation claims are viable under Title VII. Although the Seventh Circuit is the only appellate court so far to hold that sexual orientation discrimination is a form of “sex” discrimination under Title VII, recent panel decisions from the Second and Eleventh Circuit Courts of Appeals signal that additional circuit courts might be poised to overrule existing case law to find similar protections.

Legal Landscape Surrounding Sexual Orientation Discrimination Claims

Title VII prohibits workplace discrimination “because of … sex.” 42 U.S.C. § 2000e-2(a). Until recently, courts have consistently rejected claims based on sexual orientation, reasoning that “because of … sex” in Title VII encompassed claims based on an individual’s biological sex, not an individual’s sexual orientation.

Although, prior to the Seventh Circuit’s Hively decision, courts had uniformly held that sexual orientation claims are not viable under Title VII, courts have struggled in recent years to explain why. Part of the confusion lies with the Supreme Court’s opinion in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), where the Supreme Court recognized “sex stereotyping” as a valid form of sex discrimination under Title VII. There, the Court held that men and women can state a viable claim for sex discrimination when they experience discrimination based on their failure to adhere to traditional gender norms.

In Hopkins, for example, the plaintiff alleged that she was a victim of sex stereotyping. Specifically, she alleged that her coworkers described her as “abrasive[,]” brusque[,]” and “macho[,]” and commented that she should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” Id. at 234-35. The Supreme Court allowed the plaintiff’s claim to go forward, reasoning that Title VII prohibited an employer from “evaluat[ing] employees by assuming or insisting that they match the stereotype associated with their group.” Id. at 251.

In the wake of Hopkins, courts started to recognize that gay and lesbian applicants and employees could bring a claim based on sex stereotyping. Under this line of cases, courts have allowed claims where gay male plaintiffs have alleged that they were discriminated against because they were too “effeminate” and where female lesbian plaintiffs alleged that they were perceived as not being “feminine” enough. Even still, most courts cautioned against allowing plaintiffs to “bootstrap” a sexual orientation claim under the guise of “sex stereotyping.” See, e.g., Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000).

In recent years, however, courts have faced increasing difficulty distinguishing between gender-stereotyping and sexual orientation claims. This is due, in part, because “all homosexuals, by definition, fail to conform to traditional gender norms in their sexual practices.” Vickers v. Fairfield Medical Center, 453 F.3d 757, 762 (6th Cir. 2006).

Moreover, courts have also faced a changing legal landscape, due in part to the Supreme Court’s recognition that the Constitution protects the right of same-sex couples to marry. As such, courts have started to question the seemingly “paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.” Hivley, 830 F.3d at 714.

The Seventh Circuit Case

Kimberly Hively sued Ivy Tech Community College after being denied a full-time position at the college. The trial court initially dismissed Hively’s complaint based, in part, on the fact that sexual orientation was not a protected class under Title VII. A three-judge panel of the Seventh Circuit affirmed the trial court, concluding that Title VII’s prohibition of sex discrimination referred only to the “traditional notion of sex.”

Sitting en banc, the full court reversed, holding in an 8-3 decision that sex discrimination includes discrimination based upon sexual orientation. Relying, in part, on Hopkins, the Seventh Circuit held that Hively’s claim reflected “the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.” Thus, the Seventh Circuit reasoned that Hively’s case was indistinguishable from other sexual stereotyping claims, noting that “[i]t would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’”

The Seventh Circuit: The First, But Maybe Not the Last?

The Seventh Circuit’s decision comes on the heels of two other cases from the Second and Eleventh Circuit Courts of Appeals. See Evan v. Georgia Reg’l Hosp., No. 15-15234, 2017 WL 943925 (11th Cir. Mar. 10, 2017); Christiansen v. Omnicom Group, Inc., No. 16-748 (2d Cir. Mar. 27, 2017). Though both of these cases held that sexual orientation is not a protected class under Title VII, both decisions noted that they reached this conclusion because they were bound by existing precedent. Members of both panels, however, expressed doubt about the continuing validity of their Circuit’s precedent. It remains to be seen whether these decisions will be appealed to the full court or whether other courts will join the Seventh Circuit.