Does Title VII cover discrimination based on sexual orientation? The Seventh Circuit says yes, moving the issue one step closer to the U.S. Supreme Court.

This week, the full U.S. Court of Appeals for the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin) ruled that Title VII's ban on sex discrimination precludes employers from discriminating against lesbian and gay workers based on their sexual orientation. (Hively v. Ivy Tech Community, Coll. of Ind., 7th Cir., No. 15-1720, en banc decision, 4/4/17). With the 8-3 ruling, the Seventh Circuit becomes the only federal appeals court to hold Title VII covers sexual orientation bias.

Writing for the Seventh Circuit, Chief Judge Diane P. Wood said the court's ruling "must be understood against the backdrop" of Supreme Court decisions addressing sexual orientation more broadly, as well as its employment discrimination cases. Those rulings, including the 2015 decision recognizing a constitutional right to same-sex marriage, reflect societal changes about the meaning of sex that can't be ignored, the Court said. To that end, the Court stated that "[t]he logic of the Supreme Court's decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line."

Three-judge panels in the Eleventh and Second Circuits both recently held Title VII does not prohibit sexual orientation bias. The Seventh Circuit case holding otherwise creates a split in the Circuits, which makes it more likely that the U.S. Supreme Court will be called upon to resolve the conflict. However, the employer in the Seventh Circuit Hively case has said that it will not appeal that decision, so that decision will not be the one that the Supreme Court considers.

In the Eleventh Circuit case, which we discussed in a previous post, the plaintiff, Tameka Evans, has requested reconsideration by the entire Eleventh Circuit. If the entire Eleventh Circuit decides to reconsider the decision of the 3-judge panel, it is likely that Ms. Evans' attorneys will use the Seventh Circuit opinion in the Hively case to try to persuade the Eleventh Circuit to rule in their favor. It is interesting to note that the Seventh Circuit utilized the gender non-conformity theory that Judge Rosenbaum also noted in her dissent in the Evans case. Under that theory, discrimination based on a person's failure to conform to traditional gender stereotypes is a form of sex discrimination.

We will continue to monitor the developments in this area.