The rights of employees under Title VII were expanded significantly under federal law with this decision. Employees will no longer have their sexual orientation discrimination claims dismissed for failure to state a claim. Employees will now be able to bring an action for sexual orientation discrimination under Title VII. Illinois employees have had the right to make such a claim under the Illinois Human Rights Act, but this will provide another venue for such claims of discrimination.

Hively is a lesbian.^[2] She was teaching as an adjunct professor at Ivy Tech Community College’s South Bend, Indiana campus.^[3] Having applied for at least six full-time positions with no success and having her part-time contract not renewed, she filed a charge of discrimination under Title VII alleging she was discriminated against because of her sexual orientation.^[4] The EEOC issued a Notice of Right to Sue and Hively proceeded to file a lawsuit in the U.S. District Court.^[5] Hively’s claim for sexual orientation discrimination was dismissed by the district court for failure to state a claim.^[6] The Seventh Circuit initially affirmed the district court’s decision, but Hively petitioned for an en banc hearing before the entire Seventh Circuit.^[7] Hively’s petition paid off when the Seventh Circuit reversed itself and remanded it to the district court for further proceedings. The lower court will now have to decide whether discrimination occurred. Ivy Tech indicated it will not appeal, but rather will proceed to defend its case on the merits in the district court.

The question before the court was not whether the court can, or should amend Title VII, but rather whether actions taken based on sexual orientation are in fact actions taken on the basis of sex.^[8]

Federal courts have consistently held that sexual orientation is not covered by Title VII. However, the Seventh Circuit reached a conclusion, opposite of its own findings for decades, that in fact sexual orientation discrimination is discrimination based on sex, and therefore, is actionable under Title VII. The Seventh Circuit is the highest court in the United States to advance such a holding, although the EEOC has been advancing such a position for some time. Splits amongst the federal courts will surely require a Supreme Court review.

The court relied on the Oncale v. Sundowner Offshore Servs., Inc.^[9] case which addressed the question of whether Title VII covered male on male sexual harassment. A portion of the Oncale case latched onto by the Seventh Circuit is as follows:

“ ….. statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed…..”^[10]

The Seventh Circuit asserts that the Oncale court was clearly standing for the proposition that although the enacting Congress may not have anticipated a particular application of the law it cannot stand in the way of the provisions of the law.^[11]

Hively offered two avenues for the court to find in her favor that sex discrimination includes discrimination based on sexual orientation. First, if everything remained the same except her gender, would she have been treated the same. Second, was she disadvantaged due to her intimate association with someone of the same sex and thereby disadvantaged by her own sexual orientation.

Hively represented that she does not conform to the female stereotype of being heterosexual.^[12] The court viewed her claim as no different that claims brought by women that they were rejected for jobs traditionally held by males.^[13]

Her second argument that she was disadvantaged because of her association with a lesbian was compared to the line of cases wherein men and women’s freedom to marry was restricted solely because of their race.^[14] Early cases were dismissed under Title VII because of a failure to state claim for discrimination on the basis of race, but were later reversed holding that discrimination based on interracial marriage or association was in fact discrimination based on race.^[15]

In the end, the Seventh Circuit decided the case, not on what Congress may have intended many years ago, but rather what the correct rule of law is now in light of the Supreme Court’s interpretations and common sense reality that it is impossible to discriminate on the basis of sexual orientation without discriminating on the basis of gender.^[16] It held that, “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.”^[17]

The dissent indicates it is deeply troubled by the judicial power asserted by the majority in its decision and its willingness to disrupt decades of decisions by creating a newly protected category of sexual orientation discrimination under Title VII.^[18] The result is a statutory amendment of Title VII by unelected judges.^[19]

_{[1] 853 F.3d 339 (7th Cir. 2017)}

_{[2] 853 F.3d. at 341}

_[3] Id.

_[4] Id.

_[5] Id.

_[6] Id.

_{[7] Id. at 341-343.}

_{[8] Id. at 343.}

_{[9] 523 U.S. 75 (1998)}

_{[10] 523 U.S. at 79-80.}

_{[11] 853 F.3d at 345.}

_{[12] Id. at 345-346.}

_{[13] Id. at 346.}

_{[14] Id. at 347-349.}

_[15] Id.

_{[16] Id. at 350-351.}

_{[17] Id. at 351-352.}

_{[18] Id. at 360-374.}

_{[19] Id. at 360.}