BREAKING: 7th Circuit Finds Sexual Orientation Discrimination Illegal

Big news in the employment law world today. As I have blogged, a three-judge panel on the Seventh Circuit Court of Appeals previously held that sexual orientation discrimination is not discrimination based on sex as contemplated by Title VII of the Civil Rights Act of 1964. The Court reluctantly found sexual orientation discrimination is not prohibited almost purely based on binding Seventh Circuit precedent dating back to 1984. However, the Plaintiff requested the entire Seventh Circuit to rehear the case, which it did in Hively v. Ivy Tech Community College, No. 15-1720 (April 4, 2017). Well, the decision was released yesterday, and the Seventh Circuit held “that discrimination on the basis of sexual orientation is a form of sex discrimination.”

As the Court aptly stated, “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.'” The opinion is especially important because it stands in stark contracts to the Eleventh Circuit’s decision in Evans v. Georgia Regional Hospital, which found Title VII does not prohibit sexual orientation discrimination. Generally, when different circuits “split” on an important issue, it becomes much more likely the Supreme Court will address the circuit split.

Keep in mind, although federal law now prohibits sexual orientation discrimination in states encompassing the Seventh Circuit (Illinois, Indiana, and Wisconsin), there may be other laws and ordinances which also prohibit sexual orientation discrimination. In Illinois, for example, the Human Rights Act prohibits sexual orientation discrimination. In Chicago, the Chicago Human Rights Ordinance similarly prohibits sexual orientation discrimination.

Although the Court’s employment decision is a victory for human rights, the Supreme Court will likely get the final say. In the meantime, however, the Seventh Circuit’s ruling will help prevent wrongful terminations based on sexual orientation in the future.