The first-of-its-kind decision leads to a split in authority between federal circuits on discrimination and harassment claims on the basis of sexual orientation.
On April 4, the US Court of Appeals for the Seventh Circuit held in Hively v. Ivy Tech Community College of Indiana that discrimination on the basis of sexual orientation is a form of sex discrimination prohibited under Title VII of the Civil Rights Act of 1964. This marks the first time a federal court of appeals has extended Title VII’s protections to claims based on sexual orientation.
In recent years, the Equal Employment Opportunity Commission (EEOC) has interpreted Title VII’s prohibition on sex discrimination to include claims based on sexual orientation. In Baldwin v. Foxx, for instance, the EEOC concluded that discrimination on the basis of sexual orientation was unlawful under Title VII because such discrimination is inherently “premised on sex-based preferences, assumptions, expectations, stereotypes, or norms.” Until this week, however, no federal court of appeals had adopted the EEOC’s position. Indeed, the Seventh Circuit precedent set in Hamner v. St. Vincent Hospital & Health Care Center, Inc. made clear that Title VII did not apply to harassment based on sexual orientation. Many other federal appellate courts have reached the same conclusion, including a panel of the US Court of Appeals for the Eleventh Circuit, which held just last month that it could not recognize sexual orientation claims under Title VII. The Seventh Circuit in Hively became the first court of appeals to rule otherwise, and a split in authority now exists between the federal circuits.
Kimberly Hively was a part-time adjunct professor at Ivy Tech Community College. Hively, who is openly lesbian, had unsuccessfully applied for several full-time positions between 2009 and 2014, when the college declined to renew her contract. Believing that she had been discriminated against because of her sexual orientation, Hively brought suit under Title VII in federal court in Indiana. Ivy Tech argued that it could not be liable for Hively’s claims on the grounds that “sexual orientation” is not a protected category under Title VII. The district court agreed and dismissed Hively’s claims, relying on earlier Seventh Circuit precedent.
A panel of the Seventh Circuit affirmed, but, in doing so, highlighted the sharp tension between the court’s precedent and the shifting legal landscape. The panel noted, for instance, that in Price Waterhouse v. Hopkins, the US Supreme Court held that the practice of gender stereotyping falls within Title VII’s prohibition against sex discrimination. Further, in Onacle v. Sundowner Offshore Services, Inc., the Supreme Court explained that it makes no difference in Title VII harassment cases whether the sex of the harasser is the same as the sex of the victim. Moreover, a line of cases beginning with Loving v. Virginia established that discrimination on the basis of the protected characteristics of someone with whom a person associates could also be a form of impermissible discrimination. These cases, in conjunction with the Supreme Court’s recognition in Obergfell v. Hodges of the Due Process and Equal Protection clauses of the US Constitution as protecting the rights of same-sex couples to marry, have created a confused legal landscape in which homosexuals are permitted to marry under the law, but can then be punished at work for exercising that right. Nonetheless, the panel held that it was bound by precedent and could not extend Title VII protections on the basis of sexual orientation until given a mandate by either the Supreme Court or new legislation.
The full Seventh Circuit overturned the earlier panel decision. In doing so, the court explained that it was not adding “sexual orientation” as a new protected category under Title VII. Rather, the court concluded that adverse employment actions taken on the basis of sexual orientation were in fact a “subset of actions taken on the basis of sex.”
Focusing its analysis on gender nonconformity cases such as Hopkins, the court reasoned that Hively was being punished for her nonconformity with the stereotype of female heterosexuality, i.e., that women should be involved in intimate relationships with only men. Consequently, the court explained, any employment discrimination on the basis of sexual orientation necessarily takes into account the employee’s sex. The court concluded that for an employer to punish a female employee for having a same-sex partner was no different than punishing her for dressing or speaking differently than other female employees—in either case, the decision was based on sex.
The court reached the same conclusion when scrutinizing Hively’s claims through the lens of freedom of association. Under Loving and its progeny, any law that discriminates against a person because of the protected characteristics of one with whom she associates also discriminates against that person for her own traits. In this case, Hively alleged that she had been subjected to adverse actions because Ivy Tech disapproved of her relationships with other women—in other words, had she conformed to societal norms and engaged in heterosexual relationships, the adverse action never would have occurred. Consequently, Ivy Tech impermissibly drew a distinction based on sex, as the school discriminated against Hively not merely because of her partner’s sex, but because of her own sex as well.
Finally, the court reviewed the progression of the Supreme Court’s jurisprudence concerning sexual orientation over the last 20 years, noting the gradual but steady extension of protections under the Due Process and Equal Protection clauses of the Constitution. The court concluded that in light of recent Supreme Court precedent as well as “common-sense reality,” it is impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex. The court therefore overruled its earlier precedent in Hamner, and held that sexual orientation is a form of sex discrimination under Title VII.
The Seventh Circuit’s holding conflicts with those of the other nine circuits to have considered this issue. The current circuit split makes the issue especially ripe for adjudication at the Supreme Court, which may ultimately decide the issue on a nationwide scale.
Employers should review their antidiscrimination and antiharassment policies and practices to ensure that they comply with the law in the jurisdictions where they have employees. Two of the three states that compose the Seventh Circuit—Wisconsin and Illinois—already afford employment protections on the basis of sexual orientation under state law, and many states and local municipalities nationwide also bar discrimination based on sexual orientation. Consequently, employers operating in those states may already have antidiscrimination and antiharassment policies that are well situated in light of the Seventh Circuit’s holding. Employers also should take care to cover sexual orientation as a protected category when providing antidiscrimination and antiharassment training to employees and their supervisors working within the Seventh Circuit.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Ann Marie Arcadi
Barbara A. Fitzgerald
Blair J. Robinson
Grace E. Speights
 No. 15-1720, 2017 WL 1230393 (7th Cir. Apr. 4, 2017).
 EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 15, 2015).
 224 F.3d 701 (7th Cir. 2000).
 Evans v. Georgia Reg’l Hosp., No. 15-15234, 2017 WL 943925 (11th Cir. Mar. 10, 2017); see also Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999); Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005); Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285 (3d Cir. 2009); Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138 (4th Cir. 1996); Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979); Kalich v. AT & T Mobility, LLC, 679 F.3d 464 (6th Cir. 2012); Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69 (8th Cir. 1989); Medina v. Income Support Div., N.M., 413 F.3d 1131 (10th Cir. 2005).
 490 U.S. 228 (1989).
 523 U.S. 75 (1998).
 388 U.S. 1 (1967).
 135 S. Ct. 2584 (2015).