Action Item: In a landmark decision yesterday, the United States Court of Appeals for the Seventh Circuit became the first federal circuit court in the nation to hold that discrimination based on sexual orientation is prohibited under federal law.

Specifically, in its April 4, 2017 decision, the Court found that Title VII of the Civil Rights Act of 1964 prohibits job discrimination based on sexual orientation. Hively v. Ivy Tech Community College, No. 15-1720. In Hively, the plaintiff, an open lesbian, is an adjunct professor who is suing her employer, Ivy Tech Community College, alleging that she was repeatedly passed over for promotions due to her sexual orientation. In reaching its decision, the Seventh Circuit reasoned that sexual orientation discrimination is, in essence, indistinguishable from sex discrimination and thus prohibited under Title VII.

The Seventh Circuit ruling comes after a rare en banc hearing of all 11 judges reviewing a three-judge panel decision from its own court, which, despite expressing strong reservations, held that Title VII did not protect against sexual orientation discrimination, even though gay marriage is now legal. The Court’s en banc decision reversed this prior ruling by an 8-3 vote.

Hively is in line with the Equal Employment Opportunity Commission’s July 2015 administrative ruling (binding federal agencies, but not federal courts), which held that bias based on sexual orientation violates Title VII. In contrast, in March 2017, the Eleventh and Second Circuits issued decisions holding that Title VII does not prohibit discrimination on the basis of sexual orientation. Evans v Georgia Regional Hospital, No. 15-15234 (11th Cir. March 10, 2017); Christiansen v. Omnicom Group, Inc., No. 16-748 (2nd Cir. March 27, 2017). The United States Supreme Court has yet to weigh in on the issue. The Hively decision, however, now creates a circuit split on the issue of whether sexual orientation is entitled to protection under Title VII, which significantly increases the likelihood that the issue is presented to, and accepted by, the Supreme Court for a final decision.

We will continue to monitor the rapidly evolving expansion of protected characteristics under federal law. For now, as a compliance philosophy, the key takeaway for employers is to treat all employees consistently and with respect, as though everyone is protected under the law. Remember that, although protection against sexual orientation discrimination may still be in question under federal law, many states and localities across the country explicitly provide that protection for employees.