On April 4, 2017, a full en banc panel of the Seventh Circuit held in Hively v. Ivy Tech Community College (Case No. 15-1720) that sexual orientation discrimination is a form of sex discrimination under Title VII. In its decision, the Seventh Circuit found that it is a “common sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.”
The Hively ruling is the first of its kind from a federal appellate court and creates a split among the federal circuits. In March 2017, for example, the Second Circuit ruled that it lacked the ability to overturn prior precedent holding that Title VII does not preclude sexual orientation discrimination (although two judges noted that it might soon be time to revisit the issue), while the Eleventh Circuit specifically found that sexual orientation is not a protected characteristic under Title VII. See Christiansen v. Omnicom Grp., Inc., No. 16-748 (2d Cir. Mar. 27, 2017); see also Evans v. Georgia Reg’l Hosp., No. 15-15234, 2017 WL 943925, at *5–6 (11th Cir. Mar. 10, 2017). Given the split, this question is ripe for consideration by other circuits and may be one for the Supreme Court to tackle.
While significant on the federal level and more generally because of its impact on the social and legal landscape affecting the LGBTQ community, the Hively holding is consistent with the laws of various states and cities within the Seventh Circuit, such as Illinois and Wisconsin. Employers with operations in the Seventh Circuit and elsewhere are nonetheless encouraged to review their policies and training materials to ensure that they are up to date and consistent with Hively.