Reversing prior Seventh Circuit precedent, an en banc opinion from the United States Court of Appeals for the Seventh Circuit held that Title VII of the Civil Rights Act of 1964 extends to discrimination based on sexual orientation.  In doing so, the court did not add a protected class to the litany set forth within the statute; rather, it held that “discrimination on the basis of sexual orientation is a form of sex discrimination.”  The opinion acknowledges that it is reversing prior Seventh Circuit precedent on this issue, and is at odds with opinions from almost every other circuit on the issue, including an Eleventh Circuit opinion from March of this year.  The Seventh Circuit’s opinion is based on two Supreme Court opinions interpreting the protections of gender discrimination under Title VII.    In Price Waterhouse, a 1989 case, the Supreme Court held that making decisions based on gender stereotypes is sex discrimination under Title VII.  A decade later, in Oncale, the Supreme Court held that same-sex harassment is actionable under Title VII as gender discrimination.  Resting its analysis on these opinions, the Seventh Circuit held that while a policy that discriminates on the basis of sexual orientation would not impact every woman, or every man, equally, it would nevertheless arise out of the assumptions based on the proper behavior for someone of a given sex.  Specifically, “[a]ny discomfort, disapproval, or job decision based on the fact that the complainant—woman or man—dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex,” and is therefore prohibited by Title VII.

The Seventh Circuit also found support for its opinion under the associational theory, which holds that “a person who is discriminated against because of the protected characteristic of one with whom she associates is actually being disadvantaged because of her own traits.” Here, the court focused on the Supreme Court’s opinion in Loving v. Virginia, in which the Supreme Court invalidated a miscegenation statute under the Equal Protection Clause.  The Seventh Circuit extended the logic of Loving to establish that if changing the sex of one of the partners in a same-sex relationship would lead to a different result, it follows that the challenged action is because of sex and thereby discriminatory under Title VII.

The Seventh Circuit’s opinion directly conflicts with established precedent from other Courts of Appeals.  However, it is consistent with the position currently taken by the Equal Employment Opportunity Commission (“EEOC”).  As a result, it may soon find its way before the Supreme Court.  The Supreme Court’s Oncale opinion, which held that any discrimination because of sex violated Title VII, was unanimous, and authored by the late Justice Scalia.  Additionally, even if the opinion were to split along the traditional conservative-liberal divide on the Court, Justice Kennedy’s opinions in Windsor and Obergefell, two recent same-sex marriage cases from the Supreme Court, suggest that the Seventh Circuit’s reasoning might be persuasive to him if he once again finds himself as the swing-vote.  Until the Supreme Court decides, however, given the EEOC’s position on the matter and the many state and municipal laws prohibiting discrimination based on sexual orientation, employers would be wise to view Title VII’s prohibition of discrimination based on sex as encompassing sexual orientation.

Hively v. Ivy Tech Comm’y College of Indiana, No. 15-1720, --- F.3d --- (7th Cir. Apr. 4, 2017)