Late yesterday, the Seventh Circuit became the first federal appeals court to hold that Title VII’s prohibition on discrimination on the basis of a person’s sex also extends to sexual orientation.

The plaintiff, who is a lesbian, was a part-time adjunct professor at a community college in South Bend, Indiana.  She repeatedly and unsuccessfully applied for full-time teaching positions at the college, and ultimately, her part-time teaching contract was not renewed.  She believed that the college was discriminating against her because of her sexual orientation, and she filed a claim with the EEOC, and later in federal court.  The college moved to dismiss the lawsuit, arguing that she had failed to state a claim on which relief could be granted, relying on a string of cases from the Seventh Circuit and elsewhere holding that sexual orientation is not protected under Title VII.  The district court agreed and dismissed the case.  A three-judge panel of the Seventh Circuit upheld the dismissal.  On further appeal, the full Seventh Circuit took “a fresh look” at its position on the issue, and ultimately decided to overrule its prior precedent.

At issue is the language in Title VII that prohibits discrimination “because of [an] individual’s race, color, religion, sex, or national origin.”  42 U.S.C. § 2000e-2(a)(1).  The term “sex” is not defined in Title VII, and the Seventh Circuit said that, in this case, its task was 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 action taken on the basis of sex.”  Much of the opinion’s reasoning focuses on a comparative approach, asking whether the result would have been different if the plaintiff were a man, and not a woman.  The plaintiff argued that, if she had been a man in a relationship with a woman (instead of a woman in a relationship with another woman), the college would have given her a full-time teaching job.  The Seventh Circuit agreed and held that the college discriminated against the plaintiff because of her sex—because she is a woman involved in a relationship with another woman.

The Seventh Circuit also noted that, while the U.S. Supreme Court has not yet ruled on this specific question, it has issued several opinions in recent years in which it has expanded protections to gay and lesbian people under the equal protection and due process provisions of the Constitution, including 2015’s decision legalizing same-sex marriage.  The Seventh Circuit found that, in light of these Supreme Court cases, continuing to interpret Title VII as excluding sexual orientation leads to “bizarre results,” since “a person can be married on Saturday and then fired on Monday for just that act.”

The Seventh Circuit concluded that “[t]he logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.”

The Seventh Circuit’s opinion is only binding in the states that fall within its jurisdiction.  The First Circuit (which includes Massachusetts and New Hampshire) still holds that sexual orientation is not covered by Title VII.  However, state law in both Massachusetts and New Hampshire specifically prohibits discrimination on the basis of sexual orientation.

This issue will no doubt make its way to the Supreme Court over the next few years, but in the meantime, employers will want to keep a close eye on these developments.


*The case is Hively v. Ivy Tech Community College, No. 15-1720, and it can be found on the Seventh Circuit’s website.