On April 4, 2017, the Seventh Circuit Court of Appeals held – in the case of Hively v. Ivy Tech Community College of Indiana – that discrimination based upon an employee’s sexual orientation is prohibited by Title VII. The relevant facts of the case were that the plaintiff (Hively), a professor at the college, did not have her employment renewed with the defendant-college. She claimed that it was because she is a lesbian. The Seventh Circuit is the first court to make such a holding, finding that an interpretation of the law extends to protect gays and lesbians from employment decisions based on their sexual orientation. In fact, as recently as last week, the Second Circuit (the Circuit that covers New York State) – in the case of Christiansen v. Omnicom Group, Inc. – held that discrimination based on sexual orientation is not protected by Title VII.
The Seventh Circuit made clear that it had no power to “amend” Title VII, as that power lies with Congress. However, the court noted that the interpretation of Title VII was within its purview in order to decide “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.”
The plaintiff offered two ways in which she believed that “sex discrimination” included discrimination on the basis of sexual orientation. First, under the comparative method, the plaintiff argued that the same decision would not have been made if she was a man. She argued that is she was a man married or living with a woman, she would not have been fired. The court agreed that the comparative analysis would demonstrate sex discrimination in that the plaintiff failed to comply with stereotypical norms in the United States by not being heterosexual. The second theory was based on associational discrimination, in which she relied on the Supreme Court case of Loving v. Virginia, which held that restricting the right to marry because of race violated the Equal Protection Clause (in other words, it is discriminatory to act against someone because of who they are married to). Similarly, the court recognized that Title VII should prohibit discrimination based on the sex of the person associating with an employee.
The Seventh Circuit held that “discrimination on the basis of sexual orientation is a form of sex discrimination.”