Adhering to precedent that has long interpreted Title VII as not protecting against sexual orientation discrimination, a three judge panel of the Seventh Circuit Court of Appeals recently rejected a professor’s claim that she had been unlawfully denied full-time employment because of her sexual orientation. Hively v. Ivy Tech Comm. College, 2016 WL 4039703 (7th Cir. July 28, 2016).

The basis for the panel’s decision was years of precedent concluding sexual orientation alone is beyond the scope of Title VII’s protections. The Hively decision is noteworthy not only because it rejects EEOC guidance on sexual orientation discrimination under Title VII but — perhaps more importantly — because it lays the groundwork for a possible en banc hearing by the Seventh Circuit and/or an appeal to the U.S. Supreme Court. If heard by the entire Seventh Circuit, or on further appeal to the Supreme Court, longstanding precedent refusing to include sexual orientation within Title VII’s walls of protection could be at risk of being overturned.

Kimberly Hively — a part-time adjunct professor at Ivy Tech Community College — exhausted her administrative remedies through the Equal Employment Opportunity Commission (EEOC) and filed suit in federal court because Ivy Tech allegedly refused to interview and hire her to one of several full-time positions because of her sexual orientation. This despite Hively’s many years of teaching and positive evaluations. The college’s defense was simple: Title VII does not apply to claims of sexual orientation discrimination and, therefore, Hively made a claim for which there is no legal remedy.

In a thorough opinion, the Seventh Circuit discussed the EEOC’s recent decision in Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 16, 2015), where the EEOC concluded “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” While the Hively panel ultimately rejected the EEOC’s guidance on this point, it acknowledged that federal courts from across the nation are taking heed of the reasoning behind the EEOC’s decision in Baldwin. Specifically, the court recognized many courts are beginning to question the distinction between gender non-conformity discrimination — which has long been protected by Title VII — and sexual orientation discrimination — which has not. Gender non-conformity claims often entail allegations that a person has been discriminated against because he or she does not conform to society’s stereotypical norms about how a man or woman should look or act. Such claims — because they are based on the individual’s gender — are generally protected under Title VII. However, discrimination against that same individual based on sexual orientation alone is presently not recognized by courts as cognizable under Title VII.

In the Hively panel’s eyes, “the distinction between gender non-conformity claims and sexual orientation claims has created an odd state of affairs in the law” and “recent legal developments and changing workplace norms require a fresh look at the issue of sexual orientation discrimination under Title VII.” The court noted this is so in light of Obergefell v. Hodges, 135 S.Ct. 2584 (2015), where the U.S. Supreme Court ruled that same-sex couples had the right to marry in every state. The Hively panel questioned whether the right to marriage can feel like a real right if an individual can be fired by their employer for exercising it.

Not concerning itself with the paradox created by the current state of the law, the Seventh Circuit concluded that Title VII’s provision against “sex” discrimination did not include discrimination against sexual orientation alone and based its ruling on years of precedent. Ultimately, the Hively court noted it seems unlikely our society can continue to condone a legal structure in which employees can be discriminated against solely based on who they date, love or marry. The court even noted that “[p]erhaps the writing is on the wall.” Nevertheless, “the writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent.”

Stay tuned to see if or when the U.S. Supreme Court or Congress involves itself in this issue.