In a rare en banc hearing on November 30, 2016, the Seventh Circuit Court of Appeals re-heard oral arguments in Hively v. Ivy Tech Community College, No. 15‐1720.

The precedent-setting question, now before the full court on review, is whether Title VII’s employment discrimination protections extend to sexual orientation bias. If the Seventh Circuit recognizes a Title VII protection against sexual orientation discrimination, it will be the first federal Court of Appeals to do so. The U.S. Equal Employment Opportunity Commission (EEOC) and several federal District Courts, see, e.g,. EEOC v. Scott Medical Health Ctr., No. 16-225 (W.D. Pa. Nov. 4, 2016), have already adopted this position.

In the Seventh Circuit’s earlier decision in Hively, a three-judge panel concluded that absent a Supreme Court opinion or new legislation, it was bound by its own precedent, and ruled that Title VII provides neither protection from nor redress for discrimination on the basis of sexual orientation. However, the court’s opinion also acknowledged the likelihood of a future legislative or judicial change in this position, noting that “[p]erhaps the writing is on the wall.”  

While legislative efforts to add sexual orientation to the list of categories protected by Title VII have historically failed, the Seventh Circuit’s forthcoming en banc decision, and any Supreme Court decision thereafter, may soon result in an expansion of Title VII’s protections to include discrimination on the basis of sexual orientation.

For employers in Wisconsin, who are already prohibited from discriminating on the basis of sexual orientation, the Seventh Circuit’s recognition of a cause of action under Title VII would nevertheless be significant. Under such a ruling, Wisconsin employees covered by Title VII will be able to seek both compensatory and punitive damages, which are not available as remedies under state law.