August 22, 2017

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Seventh Circuit Issues Groundbreaking Decision, Holds That Sexual Orientation Discrimination Is Sex Discrimination Under Title VII

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.

© 2017 Vedder Price


About this Author

Elizabeth N. Hall, Vedder Price Law Firm, Labor Employment Attorney

Elizabeth N. Hall is a shareholder  in the firm’s Labor and Employment Practice Area.  Her experience includes defending employers before state and federal courts and administrative agencies in all types of individual employee and class action labor and employment litigation including equal employment opportunity, wrongful and retaliatory discharge and wage and hour issues.  Ms. Hall has successfully argued procedural and employment discrimination issues in the United States Court of Appeals for the Seventh Circuit, and has particular expertise managing electronic discovery in complex...

Caralyn M. Olie, Vedder Price, Age Discrimination Lawyer, Employment Policy Drafting Attorney

Caralyn Olie is an associate in the Labor & Employment practice group. She represents management in all areas of employment law, including claims under Title VII, the Americans with Disabilities Act and the Age Discrimination in Employment Act. She defends employers in state and federal court and before the NLRB, EEOC and Illinois Department of Human Rights. Ms. Olie also counsels employers on all aspects of employment law. 

Ms. Olie graduated in 2008 from Cornell University, where she earned a Bachelor of Science in Industrial and Labor Relations. After graduating from Cornell, Ms. Olie worked in the Human Resources Department of Morgan Stanley in New York.

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