On April 4, 2017, a full en banc panel of the Seventh
Circuit held in Hively v. Ivy Tech Community College (Case
No. 15-1720) that sexual orientation discrimination is a form of
sex discrimination under Title VII. In its decision, the Seventh
Circuit found that it is a "common sense reality that it is
actually impossible to discriminate on the basis of sexual
orientation without discriminating on the basis of sex."
The Hively ruling is the first of its kind from a
federal appellate court and creates a split among the federal
circuits. In March 2017, for example, the Second Circuit ruled that
it lacked the ability to overturn prior precedent holding that
Title VII does not preclude sexual orientation discrimination
(although two judges noted that it might soon be time to revisit
the issue), while the Eleventh Circuit specifically found that
sexual orientation is not a protected characteristic under Title
VII. See Christiansen v. Omnicom Grp., Inc., No. 16-748
(2d Cir. Mar. 27, 2017); see also Evans v. Georgia Reg'l
Hosp., No. 15-15234, 2017 WL 943925, at *5–6 (11th Cir.
Mar. 10, 2017). Given the split, this question is ripe for
consideration by other circuits and may be one for the Supreme
Court to tackle.
While significant on the federal level and more generally
because of its impact on the social and legal landscape affecting
the LGBTQ community, the Hively holding is consistent with
the laws of various states and cities within the Seventh Circuit,
such as Illinois and Wisconsin. Employers with operations in the
Seventh Circuit and elsewhere are nonetheless encouraged to review
their policies and training materials to ensure that they are up to
date and consistent with Hively.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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