The Seventh Circuit Court of Appeals is the first federal appellate court in the country to rule that Title VII already protects employees from discrimination because of sexual orientation. In every other case that has previously reached a federal court of appeals, the court has ruled the employee could proceed only on the basis of a sex stereotyping claim. Employees could claim that they were discriminated against because, as men, they were not sufficiently masculine, or as women, they were not sufficiently feminine. But employees had no claim for discrimination based on their status as homosexuals.
The Seventh Circuit took the narrowest possible path. It held that homosexuality is attraction to a person of one’s own sex and, therefore, discrimination because of sexual orientation is discrimination that only occurs because of one’s own biological sex. Or, to put it another way, sexual orientation is the sex of the person with whom the employee associates. Title VII has always made it illegal to discriminate against an employee because the employee’s friends and lovers are of a different race. Now, the same reasoning applies to sex.
The Supreme Court might yet take up this case, or another court’s ruling on the same issue. When it does, expect the argument to dwell on the Seventh Circuit’s comparison of sexual orientation discrimination to Constitutional issues the Supreme Court has already seen. Stay tuned. Hively v. Ivy Tech Comm. Col., No. 15-1720 (7th Cir. April 4, 2017).
