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3 Things to Know About the Seventh Circuit’s Decision to Shield Sexual Orientation Under Title VII

On April 4, 2017, in Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. 2017) (en banc), the U. S. Court of Appeals for the Seventh Circuit ruled that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation.

The court held that discrimination on the basis of sexual orientation constitutes impermissible discrimination on the basis of sex—one of the specifically listed categories that are protected under Title VII. The ruling departs from every previous federal appellate court ruling, some of which were by the Seventh Circuit.

The immediate impact of the opinion is technically only limited to the Seventh Circuit, which covers Illinois, Indiana, and Wisconsin. However, the longer-term impact could be much more substantial.

  1. Circuit Court Split—Potential Supreme Court Resolution

The court’s ruling sets the groundwork for a circuit split, which could ultimately be resolved by the U. S. Supreme Court. Indeed, the Seventh Circuit calls out the Supreme Court for its “[n]otable absence from the debate over the proper interpretation of the scope of Title VII’s ban on sex discrimination.” However, the Hively decision will not present such opportunity, as the defendant has decided to defend the case on the merits on remand rather than to ask the Supreme Court to hear the case.

If the Supreme Court were to take up the issue in another case, the outcome could be affected by the recent swearing-in of Justice Neil Gorsuch. While serving as a judge on the 10th Circuit, Justice Gorsuch did not have the opportunity to opine on Title VII’s application to gender discrimination. As evidenced by the four opinions in the Hively case (the majority by Chief Judge Diane Wood, the separate concurrences by Judge Richard Posner and Judge Joel Flaum, and the dissent by Judge Diane Sykes), the case presents a statutory interpretation issue that can be approached in many ways.

  1. Impact on Other Circuits

The case could very well affect the way that other circuits approach their own Title VII jurisprudence. Prior to Hively, the Seventh Circuit had ruled that Title VII did not protect against discrimination on the basis of sexual orientation. The interpretative approaches outlined by the majority and concurring opinions may provide a roadmap for other circuits to similarly depart from their own previous rulings.

  1. Implications

The Seventh Circuit acknowledged that it was not addressing Title VII’s exemptions for certain religious institutions. Additionally, employers should be aware that Title VII is only one of many laws governing workplace discrimination. Currently, more than 20 states already have state-level protections for employees on the basis of sexual orientation, including Connecticut, Massachusetts, New Hampshire, New York, and Rhode Island. Further, best practices suggest that employers should be proactive in cultivating a non-discriminatory, inclusive work environment irrespective of the latest court rulings.

Still, even well-meaning employers can find themselves on the wrong end of a discrimination claim. It is important to have in place policies that protect against such claims and to take appropriate action to respond to charges of discrimination.

For any questions please contact the Hinckley Allen attorney with whom you regularly work, or one of our Labor & Employment attorneys.