On April 4, 2017, the U.S. Court of Appeals for the Seventh Circuit held in Hively v. Ivy Tech Community College of Indiana that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964. This is the first time a federal appellate court has so held.
Title VII makes it unlawful for employers to discriminate on the basis of a person’s race, color, religion, sex, or national origin.1 Therefore, an employer may not take an adverse employment action, such as a termination or refusal to hire, on the basis of a protected characteristic, such as sex. Historically, many lawsuits brought under Title VII alleging discrimination on the basis of sexual orientation have been dismissed on the grounds that Title VII does not identify sexual orientation as a protected category. In recent years, however, social and judicial understanding of sex discrimination has expanded to include sex-based assumptions about sexuality.
The Question Before the Court
The plaintiff in Hively was an adjunct professor and openly gay. She brought suit under Title VII against her employer alleging she was denied full-time employment because of her sexual orientation. The employer moved to dismiss Hively’s claims, arguing that sexual orientation is not protected under Title VII. The lower court granted Ivy Tech’s motion and dismissed the complaint, and Hively appealed.
The Seventh Circuit set out to answer whether Title VII’s protections against sex discrimination protect Hively from discrimination on the basis of her sexual orientation. The question was one of statutory interpretation: “We must decide  what it means to discriminate on the basis of sex, and in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex.”
Seventh Circuit Decision
The court held, “[W]e conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination” and “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” The court relied on two legal theories to come to this conclusion. First, it held that Hively’s claim was, at its core, a gender stereotyping claim and that Title VII prohibits gender stereotyping. Second, it held that Hively was alleging discrimination on the basis of her association with a woman and that Title VII prohibits discrimination on the basis of association with someone with a protected trait (sex).
The U.S. Supreme Court has yet to decide whether sexual orientation discrimination is a subset of sex discrimination. However, the Seventh Circuit relied heavily on Supreme Court precedent about gender stereotyping.2 The Seventh Circuit held, “[v]iewed through the lens of the gender non-conformity line of cases, Hively represents 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.” Just as the Supreme Court ruled that an employer cannot discriminate against a woman on the basis of being “too ‘masculine’” or having “no makeup, no jewelry, no fashion sense,”3 the Seventh Circuit found that the same logic applies to discriminating against a woman for not meeting her sexuality stereotype.
What Does This Decision Mean for Employers?
The circuit courts are now split on this topic and the law is quickly evolving. On March 10, 2017, the Eleventh Circuit dismissed a similar lawsuit and held that Title VII does not protect against discrimination on the basis of sexual orientation.4 In that case, the Eleventh Circuit rejected the argument that sexual orientation discrimination is another form of gender stereotyping. A petition for rehearing en banc, however, has been filed in that case. This circuit split means the issue as to whether sexual orientation is a protected category under Title VII may eventually land at the Supreme Court for resolution.
In the meantime, employers in the Seventh Circuit should review their personnel policies to ensure they comply with the court’s decision. Moreover, almost half of all states and many cities already prohibit discrimination based on sexual orientation and/or gender identity, so an employer's obligation not to discriminate on these bases might already be in place. In addition, the U.S. Equal Employment Opportunity Commission maintains the position that Title VII’s prohibition of employment discrimination on the basis of “sex” includes a prohibition of discrimination based on gender identity or expression and sexual orientation, and it will continue to pursue such claims as part of its 2017-2021 Strategic Enforcement Plan.