Friday, April 07, 2017

The Seventh Circuit: Title VII of the Civil Rights Act Bars Discrimination Based on Sexual Orientation

By Steve Stapleton

In Hively v. Ivy Tech, *1 the Seventh Circuit Court of Appeals, in an en banc decision, held that Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination.  It is the first circuit court to so decide.  Further, in so deciding, the Seventh Circuit created a circuit split, *2  thus dramatically increasing the odds of a Supreme Court review.  

The case came to the Court from a lower district court decision on summary judgment.  The District Court held, following Seventh Circuit precedent, that employment discrimination on the basis of sex does not include discrimination on the basis of sexual orientation.  A panel of three judges from the Seventh Circuit agreed, but suggested that the issue required an en banc review – namely, a review by all the justices of the Seventh Circuit.  Upon such review, the en banc decision reversed the panel’s prior decision and concluded that discrimination on the basis of sex included discrimination on the basis of sexual orientation and thus was prohibited by Title VII.

Examining Supreme Court precedent, the Court noted the Seventh Circuit panel’s paradox based on a reading of the Supreme Court decision of Obergefell v. Hodges, 135 S.Ct. 2584 (2015), “in which a person can be [legally] married on Saturday and then [legally] fired on Monday for just that act.”  Hively v. Ivy Tech at *5, citing 830 F.3d at 714.  The Court nevertheless posed the question as follows:

The question before us is not whether this court can, or should “amend” Title VII to add a new protected category to the familiar list of “race, color, religion, sex, or national origin.”  42 U.S.C. § 2000-e2(a).  Obviously, that lies beyond our power.  We must decide instead 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.

Hively v. Ivy Tech, supra at *6.

In concluding that the answer to that question was yes, the Seventh Court’s interpretive task was guided by another Supreme Court decision.  In Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), the Supreme Court said:

We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII.  As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII.  But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.  Title VII prohibits “discriminate[ion] … because of … sex” in the “terms” or “conditions” or employment.  Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements. *3

Thus the Seventh Circuit Court of Appeals held that employment discrimination on the basis of sex includes discrimination on the basis of sexual orientation. *4

But is should be emphasized what the Seventh Circuit’s opinion did not do.  The case came before the Seventh Circuit on a motion to dismiss.  Thus, there was no hearing on the merits.  For example, Ivy Tech had not contended that it was a religious institution and its position was related to its religious mission.  Nor, said the court, did it have an opportunity to consider the meaning of discrimination in the context of social or public services.  If those claims are made, those are issues for another day. *5

For the time being, the Seventh Circuit’s monumental decision is simple:  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 therefore reversed the district court’s judgment dismissing the case and remanded the case for further proceedings.


  1. Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir., April 4, 2017)(en banc, J. Wood).
  2. Compare Hivey v. Ivy Tech, supra with Higgins v. New Balance Athletic Shoe, Inc., 194 F.2d 252, 259 (1st Cir. 1999); Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005); Prowel v. Wise Bros. Forms, Inc., 579 F.3d 285, 290 (3d Cir. 2009); Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138, 143 (4th Cir. 1996); Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979); Kalich v. AT&T Mobility, LLC, 679 F.3d 464, 471 (6th Cir. 2012); Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989); Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005); Fredette v. BVP Mgmt. Assocs., 112 F.3d 1503, 1510 (11th Cir. 1997).
  3. 523 U.S. at 79-80.
  4. Hively v. Ivy Tech, supra at *23.
  5. Id.


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