“The Writing Is on the Wall:” The Seventh Circuit Holds Title VII Prohibits Discrimination Based on Sexual Orientation

by Hirschfeld Kraemer LLP

Hirschfeld Kraemer LLP

On April 4, 2017, the Seventh Circuit Court of Appeal became the first United States appellate court to hold that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation.  This is a landmark decision and we expect the issue to reach the U.S. Supreme Court in coming years after other circuits decide the issue.

Kimberly Hively’s Complaint

In Hively v. Ivy Tech Community College of Indiana, Plaintiff Kimberly Hively claimed that Ivy Tech denied her a full-time teaching position on the basis of her sexual orientation in violation of Title VII, which makes it unlawful for an employer to discriminate on the basis of a person’s “race, color, sex, or national origin.” 42 U.S.C. § 2000e-2(a). The United States District Court for the Northern District of Indiana granted Ivy Tech’s motion to dismiss Hively’s complaint on the grounds that Title VII does not list “sexual orientation” as a protected characteristic.

The Seventh Circuit originally agreed with the District Court, holding that Title VII does not protect against sexual orientation discrimination. In its mixed ruling, however, the Court openly acknowledged that the time had come for a more expansive interpretation of Title VII’s anti-discrimination provisions.

In 2015, the United States Supreme Court held that the Fourteenth Amendment guarantees same-sex couples the fundamental right to marry in every state of the Union. (See Obergefell v. Hodges (2015) 135 S.Ct. 2584, 2596.) The Supreme Court’s decision, however, had no impact on the statutory interpretation of Title VII. Therefore, as the Seventh Circuit stated in its original opinion, the current jurisprudence has created “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.” (Hively v. Ivy Tech Cmty. Coll. (7th Cir. 2016) 830 F.3d 698, 714, overruled by Hively v. Ivy Tech Cmty. Coll. (7th Cir. 2017) – F.3d –, 2017 U.S. App. LEXIS 5839.) The Court further stated:

Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired . . . and otherwise discriminated against solely based on who they date, love or marry.

(Id. at 718 [emphasis added].)

The Seventh Circuit Court of Appeal’s En Banc Decision

Hively petitioned the Court for a rehearing en banc. This week, the en banc Seventh Circuit overruled its own precedent and separated itself from all other circuit courts that have addressed this issue in holding that Title VII’s prohibition against sex discrimination includes discrimination on the basis of sexual orientation.

The Court’s landmark decision was based on two legal theories. First, the Court held that Hively’s claim for sexual orientation discrimination falls within Title VII’s prohibition against gender stereotyping. As a homosexual woman, the Court reasoned that “Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional).”

Second, the Court held that Hively’s claim also falls within Title VII’s prohibition against associational discrimination – that is, discrimination based on the protected characteristic (sex) of one with whom an employee associates. The Court likened Hively’s case to Loving v. Virginia and the long line of cases prohibiting discrimination based on interracial marriage. The Court stated: “No matter which category is involved, the essence of the claim is that the plaintiff would not be suffering the adverse action had [his or her associate’s] sex, race, color, national origin, or religion been different.”

Impact on Federal Law

The United States Supreme Court has not decided whether Title VII prohibits discrimination on the basis of sexual orientation and it is not likely to do so with this case. A representative for Ivy Tech told the New York Times that the school will not appeal the Seventh Circuit’s ruling, but will continue to litigate the merits of Hively’s claim.

Nevertheless, employers in all jurisdictions should be mindful that the United States Equal Employment Opportunity Commission, the federal agency charged with enforcing Title VII, already has interpreted sex discrimination to include discrimination on the basis of sexual orientation and gender identity. (See Macy v. Dept. of Justice (EEOC 2012); Lusardi v. Dep’t of Army (EEOC 2015).) As set forth in its Strategic Enforcement Plan for Fiscal Years 2017-2021, the EEOC will continue to prioritize the litigation of claims on behalf of the LGBT community.

Written by:

Hirschfeld Kraemer LLP

Hirschfeld Kraemer LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.