On Tuesday, April 4, 2017, the Seventh Circuit Court of Appeals became the first Federal Appellate Court to hold that Title VII of the Civil Rights Act of 1964 protects discrimination on the basis of sexual orientation.  While some states have already enacted laws protecting against that type of discrimination, and many employers have added such protections into company equal employment opportunity policies, this marks the first time sexual orientation has been deemed protected at this level under the federal Civil Rights Act.

We briefly reported on the case, Hively v. Ivy Tech, in an advisory we issued shortly after the ruling came out, but the case is worthy of more thorough discussion on this blog.  The lawsuit involved a gay college professor bringing claims of discrimination against her employer.  Initially, the federal trial court ruled in favor of the employer, finding that Title VII does not prohibit sexual orientation discrimination.  The three-judge panel of the Seventh Circuit hearing the appeal had to affirm this ruling based on the Court’s  own prior precedent, but noted that this precedent was probably untenable and urged a rehearing of the entire Court (known as an en banc hearing) where prior precedent can be reconsidered.

The full Seventh Circuit obliged, and issued a resounding 8-3 in Hively’s favor overturning prior precedent (this included five Republican appointees in the majority).  The reasoning tracked the EEOC’s 2015 determination that Title VII protected from sexual orientation discrimination, as we detailed last year.

There are three reasons, the Court found, why sexual-orientation discrimination is prohibited by Title VII.  First, it is discrimination based on sex stereotypes, forbidden by the Supreme Court in Price Waterhouse v. Hopkins in a 1989 ruling.  In sum, this means that an employer cannot discriminate against an employee because the employee does not fit into the stereotype of “woman who dates a man” or vice versa.  Secondly, Title VII prohibits discrimination because of sex.  In this case, if Hively had been a man dating a woman there would have been no discrimination; it was because she was a woman dating a woman that there was discrimination (according to her allegations).  Lastly, the Court adopted the “associational theory” of discrimination originally put forth in the Supreme Court’s Loving v. Virginia decision.  This theory prohibits discrimination against someone based upon whom he or she associates.  Here, the college allegedly discriminated against Hively for intimately associating with another woman.  All three theories weave together to make a powerful case for sexual-orientation protections under Title VII according to the Court.

It should also be noted that famed jurist Judge Richard Posner (a Reagan appointee) wrote a concurrence insisting that it is the judiciary’s job to “infuse” the statutes, including Title VII, “with vitality and significance today,” rather than rely on the original meaning of the words.  He wrote:

[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 may Capitol Hill offices and, notoriously, Fox News, among other institutions), is a form of sexual 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 take 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.

 As predicted on this blog almost exactly a year ago, the tide has turned in favor of protecting sexual orientation from discrimination.  This decision is notable, not only for its legal logic or that it is the first Federal Appellate Court to adopt the reasoning, but because of the bi-partisan breakdown of the vote.  As the judiciary, like the public at large, become more and more LGBTQ friendly, it becomes only a matter of time before other Circuits, or even the U.S. Supreme Court, adopts this reasoning.  Therefore, regardless of personal or religious beliefs, it is prudent for employers to begin to take steps to prepare for a likely future when sexual-orientation discrimination is expected to be outlawed in every jurisdiction.