On Tuesday, April 4, 2017, the U.S. Court of Appeals for the Seventh Circuit issued a landmark decision, holding that federal discrimination law prohibits workplace discrimination on the basis of sexual orientation. In an 8 – 3 decision in Hively v. Ivy Tech Community ollege, the Seventh Circuit became the first federal court of appeals to hold that discrimination on the basis of sexual orientation is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964.
The case involved Kimberly Hively, who had been employed as a part‐time adjunct professor at Ivy Tech Community College in Indiana. In 2013, Hively filed a charge of discrimination with the Equal Employment Opportunity Commission, the federal agency responsible for enforcing Title VII, alleging that Ivy Tech denied her full-time employment because of her sexual orientation. After exhausting her administrative remedies at the EEOC, Hively sued Ivy Tech in federal district court. The district court dismissed Hively’s complaint for failure to state a claim, following earlier rulings which held that Title VII does not prohibit discrimination based on sexual orientation. Hively appealed to the Seventh Circuit.
On July 28, 2016, a three-judge panel of the Seventh Circuit reluctantly affirmed the dismissal of Hively’s complaint. The panel concluded that it was obligated to follow its prior decisions which unequivocally held that sexual orientation discrimination is not prohibited by federal law.
The Seventh Circuit subsequently granted Hively’s petition to reconsider its ruling at a hearing presided over by all active Seventh Circuit judges, as opposed to the traditional three-judge panel. In its majority opinion, authored by Chief Judge Diane Wood, eight of the eleven sitting judges on the Seventh Circuit concluded that “discrimination on the basis of sexual orientation is a form of sex discrimination” prohibited by Title VII. Notably, two out of the three judges on the original Seventh Circuit panel that affirmed the dismissal of the plaintiff’s sexual orientation discrimination claims joined in the Seventh Circuit’s majority opinion.
The Seventh Circuit’s ruling in Hively is a significant (though not unexpected) reversal of its prior decisions and conflicts with virtually every other federal court of appeals. Absent federal legislation clarifying the scope of Title VII, the Supreme Court has the final say as to whether sexual orientation discrimination is prohibited by Title VII. Until then, Hively is the law of the land in Wisconsin, Illinois and Indiana.
Any questions regarding the potential impact of the Seventh Circuit’s decision in Hively, Title VII, or employment law and regulations at the state and federal level should be directed to Matt Tyrrell at (312) 648-2300 or matthew.tyrrell@sfnr.com.
