'sunlight rainbow flag : harvey milk plaza, castro,  san francisco (2014)' found at https://flic.kr/p/nS5326 by torbakhopper (https://flickr.com/people/gazeronly) used under Creative Commons Attribution-NoDerivs License (http://creativecommons.org/licenses/by-nd/2.0/)
'sunlight rainbow flag : harvey milk plaza, castro,  san francisco (2014)' found at https://flic.kr/p/nS5326 by torbakhopper (https://flickr.com/people/gazeronly) used under Creative Commons Attribution-NoDerivs License (http://creativecommons.org/licenses/by-nd/2.0/)
'sunlight rainbow flag : harvey milk plaza, castro,  san francisco (2014)' found at https://flic.kr/p/nS5326 by torbakhopper (https://flickr.com/people/gazeronly) used under Creative Commons Attribution-NoDerivs License (http://creativecommons.org/licenses/by-nd/2.0/)

In a landmark decision that is sending shockwaves through the employment law bar, the 7th Circuit Court of Appeals (the federal appeals court located in Chicago, IL, which covers the states of Indiana, Illinois, and Wisconsin), issued a decision which holds that discrimination based on one's sexual orientation is prohibited under the Title VII of Civil Rights Act of 1964. This ruling is the first time that a federal appeals court has held that Title VII protects workers against discrimination due to their sexual orientation.

Title VII of the Civil Rights Act of 1964 makes it unlawful for employers to discriminate on the basis of a person’s “race, color, religion, sex, or national origin … .” The question before the 7th Circuit was whether discrimination on the basis of sexual orientation is a form of discrimination on the basis of “sex,” and, therefore, prohibited by Title VII.

Facts of the Case

The case, Hively v. Ivy Tech Community College, involved an openly gay professor named Kimberly Hively, who claimed that Ivy Tech, located in South Bend, Indiana, discriminated against her because of her sexual orientation. Between 2009 and 2014, Hively applied for at least six full-time positions but was not selected for any of them. In late 2013, Hively filed a charge with the EEOC, alleging that she was being discriminated against on the basis of her sexual orientation in violation of Title VII for being denied a full-time position. Then, in July 2014, Ivy Tech did not renew Hively’s part-time contract. Hively subsequently sued in federal court.

Prior Court Rulings

Ivy Tech sought to dismiss the lawsuit on grounds that Title VII did not protect against sexual orientation discrimination. The district court agreed, and dismissed Hively’s lawsuit. On appeal, a 3-judge panel of the 7th Circuit initially affirmed the trial court's decision, but in doing so the panel cautioned that it found the prior case law from the 7th Circuit to be dubious and urged further review by the entire 7th Circuit panel of judges. Hively requested an "en banc" review (a review by the entire 7th Circuit panel of judges), which the court permitted. 

7th Circuit Groundbreaking Ruling

The en banc panel heard oral argument in November 2016 and issued its decision on April 4, 2017.  In the 8-3 ruling written by the Chief Judge, the en banc panel overturned the lower court and its own prior precedent and held that Title VII protects all homosexual employees from discrimination based on their sexual orientation.  The vote was 8-3, and, interestingly, 5 of the justices who joined the majority opinion were appointed by Republican presidents.  In so holding, the 7th Circuit embraced the view long-held by the EEOC that sexual orientation discrimination is a form of "sex" discrimination, thus bringing the claim within the coverage of Title VII. 

The en banc court held that discrimination on the basis of sexual orientation is impermissible “sex stereotyping.” The 7th Circuit stated that Hively “represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.”

The court also found that discrimination on the basis of sexual orientation is a form of associational discrimination based on sex. In Hively’s case, if the sex of her partner (female rather than male) led to her being treated unfavorably in the workplace, then that distinction is “because of sex.” The court stated: “No matter which category is involved, the essence of the claim is that the plaintiff would not be suffering the adverse action had his or her sex, race, color, national origin, or religion been different.”

Explaining the 7th Circuit's rationale in a separate (concurring) opinion, Judge Posner explained:

"[I]t has taken our courts and our society a considerable while to realize that sexual harassment, which has been pervasive in many workplaces (including many Capitol Hill offices and, notoriously, Fox News, among many other institutions), is a form of sex discrimination. It has taken a little longer for realization to dawn that discrimination based on a woman’s failure to fulfill stereotypical gender roles is also a form of sex discrimination. And it has taken still longer, with a substantial volume of cases struggling and failing to maintain a plausible, defensible line between sex discrimination and sexual-orientation discrimination, to realize that homosexuality is nothing worse than failing to fulfill stereotypical gender roles."

What does this ruling mean for Massachusetts and NH?

This ruling is clearly a huge victory for the LGBTQ community, as it represents a significant and thoroughly-reasoned departure from holdings in all other federal courts of appeal.  The 7th Circuit's ruling may represent a tipping point in federal court interpretation of Title VII, which could have a significant impact on homosexual employees in the many states throughout the United States where sexual orientation is still not a protected class under workplace discrimination law. 

For employers located in Indiana, Illinois, and Wisconsin, the 7th Circuit’s decision is binding precedent. However, the 1st Circuit Court of Appeals -- which covers ME, MA, NH, Puerto Rico, and RI) -- has thus far declined to hold that sexual orientation discrimination is prohibited by Title VI. It is important to note that both MA and NH prohibit discrimination based on sexual orientation under state law (Mass. Gen. Laws ch. 151B; N.H. R.S.A. sec. 354-A).

Click here to see the 7th Circuit's decision

Click here to listen to recordings of the oral arguments before the 7th Circuit