Earlier this week, the Seventh Circuit in an en banc (all member of the court participating as opposed to only three) decision held that Title VII’s ban on sex discrimination encompasses discrimination based on sexual orientation. The 8-3 ruling represents the first federal court of appeals ruling to find that Title VII covers sexual orientation bias.
While many state statutes prohibit discrimination on the basis of sexual orientation or gender identity, Courts across the country diverge on whether sexual orientation is protected under Title VII. This decision (Hively v. Ivy Tech Community College of Indiana) overruled previous Seventh Circuit precedent and makes it much more likely that the Supreme Court will grant review to determine whether Title VII prohibits sexual orientation bias. Judge Diane P. Wood authored the opinion and noted that the ruling needed to be “understood against the backdrop” of Supreme Court decisions that had discussed sexual orientation including the 2015 decision recognizing a constitutional right to same-sex marriage.
The court was clear that it was in no way attempting to “amend” Title VII, but instead was called upon to decide “what it means to discriminate on the basis of sex,” and specifically “whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex.”