On Tuesday, the full Seventh Circuit Court of Appeals concluded that Title VII of the Civil Rights Act of 1964’s prohibition against sex discrimination also includes protections against employees being discriminated against based on their sexual orientation. In Hively v. Ivy Tech Comm. Coll., the court, sitting en banc in an 8-3 decision, reversed an appeals panel that dismissed the plaintiff’s sex discrimination claim for lack of coverage under Title VII.

The plaintiff in Hively was a community college instructor who alleged that she was not considered for a promotion and was subsequently terminated because she is a lesbian. The district court and Seventh Circuit panel dismissed the claim, concluding that Title VII does not protect discrimination on the basis of sexual orientation. While the Supreme Court has never directly addressed this issue, the Seventh Circuit majority relied on a series of its decisions to conclude that the definition of sex under Title VII now encompasses sexual orientation, despite the fact that Congress may not have originally included this basis in the law when it was enacted.

The majority opinion relies on reasoning used by the EEOC to reach the same conclusion in decisions involving federal employees. First, any discrimination on the basis of sexual orientation results from sex stereotyping, which is prohibited under the Supreme Court’s Hopkins decision. Orientation cannot be separated from an employer’s views of how men and women should behave. Second analogizing to the Supreme Court’s landmark Loving decision, the Seventh Circuit concluded that discrimination based on sexual orientation constitutes discrimination on the basis of association of the employee with someone of the same sex. Third, the court used a comparative method of analyzing Title VII to conclude that discrimination on the basis of sexual orientation is a form of sex discrimination.

In a lengthy dissent, three Seventh Circuit judges accused the majority of circumventing the legislative process, and amending Title VII after Congress has repeatedly failed to do so. The potential impact of this decision and the sharp divide within the Seventh Circuit make it increasingly likely that the Supreme Court will agree to review this decision. For the time being, employment protections based on sexual orientation depend on state laws and interpretations of Title VII in the areas where the employees are located.