Seventh Circuit hands down landmark ruling on sexual orientation discrimination

by Dentons


On April 5, 2017, in a landmark decision, the US Court of Appeals for the Seventh Circuit, sitting en banc, held that Title VII of the Civil Rights Act of 1964 bars discrimination on the basis of sexual orientation. Hively v. Ivy Tech Community College of Indiana, No. 15-1720, 2017 WL 1230393 (7th Cir. Apr. 4, 2017), is the first decision in which a federal circuit court interpreted Title VII to bar disparate treatment on the basis of sexual orientation. In contrast, the Second and Eleventh Circuits had previously declined to extend Title VII protection to sexual orientation. This circuit split increases the likelihood that the Supreme Court—with the newest associate justice, Neil Gorsuch, on the bench—will resolve the issue.

Title VII prohibits employers from discriminating against employees on the basis of race, color, religion, sex or national origin. Title VII does not, however, expressly prohibit sexual orientation discrimination. Although the Equal Employment Opportunity Commission has taken the position that sexual orientation discrimination is a form of sex discrimination, prior to Hively, courts had declined to extend Title VII protection to the victims of discrimination on the basis of their sexual orientation.

The plaintiff in the new Seventh Circuit case, Kimberly Hively, was a part-time professor at Ivy Tech Community College. Between 2009 and 2014, she unsuccessfully applied for at least six full-time positions at the school. In 2014, Ivy Tech declined to renew her contract for part-time work. Believing that she was the subject of discrimination based on her sexual orientation, Hively, who is openly gay, filed a charge of discrimination with the EEOC. The charge read, in relevant part, “I believe I am being blocked from fulltime employment . . . based on my sexual orientation.”

Hively brought a pro se action against Ivy Tech in the US District Court for the Northern District of Indiana after the EEOC issued her a right-to-sue letter. In her complaint, Hively alleged that, despite meeting all the qualifications for the teaching job and never receiving a negative review, Ivy Tech refused even to interview her for the full-time positions for which she had applied. She stated that she was “[d]enied full time employment and promotions based on sexual orientation in violation of Title VII.” Ivy Tech moved to dismiss on the grounds that sexual orientation is not a protected class under Title VII. Relying on Seventh Circuit precedent, the District Court dismissed Hively’s case, with prejudice.

Hively, now represented by counsel, appealed to the Seventh Circuit. The Seventh Circuit panel affirmed the District Court’s decision, holding that the Seventh Circuit “has undeniably declared that claims for sexual orientation are not cognizable under Title VII.”

A majority of the active judges constituting the Seventh Circuit voted to rehear the case. By an 8-3 vote, the court overturned the panel’s decision. The court acknowledged that prior cases from the Seventh and other circuits had indeed held that Title VII’s prohibition against sex discrimination did not extend to sexual orientation because “Congress had nothing more than the traditional notion of ‘sex’ in mind when it voted to outlaw sex discrimination.” The court also recognized that the Supreme Court has not directly addressed the issue. The court noted, however, that several Supreme Court opinions, including Price Waterhouse v. Hopkins and Oncale v. Sundowner Offshore Services, Inc., have expanded the definition of “sex” in Title VII to protect individuals from gender stereotyping and same-sex sexual harassment.

Against this backdrop, the court considered Hively’s arguments that Title VII prohibits employers from discriminating on the basis of their employees’ sexual orientation. Hively first argued that, if she were a man and married to a woman, Ivy Tech would not have refused to consider her for the full-time positions or terminated her part-time contract. The court noted that “[t]his describes paradigmatic sex discrimination,” in that Hively was arguing that “Ivy Tech is disadvantaging her because she is a woman.” The court pointed out, “Hively represents the ultimate case of failure to conform to the female stereotype . . .: she is not heterosexual.” The court concluded that there is no difference between gender nonconformity claims, which courts have found fall under Title VII, and sexual orientation claims.

The court also addressed Hively’s second argument that an action “based on sexual orientation is sex discrimination under association theory.” The court noted that this theory is based on the Loving v. Virginia line of cases, which recognizes “that discrimination on the basis of the race with whom a person associates is a form of racial discrimination.” The court stated that the language of Title VII does not draw any distinction between the different types of discrimination it addresses. “This means that to the extent that the statute prohibits discrimination on the basis of the race of someone with whom the plaintiff associates, it also prohibits discrimination on the basis of the national origin, or the color, or the religion, or (as relevant here) the sex of the associate.” As such, the court concluded that “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.”

Following the Hively decision, employers in the Seventh Circuit and in those jurisdictions that expressly bar discrimination against sexual orientation by statute must take steps to ensure that their employees are aware that sexual orientation is a federally protected class. These measures should include administering appropriate training for employees and contractors, as well as updating language in human resources documents and companies policies, as necessary. Meanwhile, employers in other parts of the country should monitor this area of the law for further developments closer to home, and, of course, whether the Supreme Court accepts Hively or another case to decide whether Title VII bars discrimination on the basis of sexual orientation. If so, it could be Justice Gorsuch’s first opportunity to to interpret the civil rights statutes and weigh in on the rights of members of the LGBT community and to interpret the civil rights statutes.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Dentons | Attorney Advertising

Written by:


Dentons 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.
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 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:

- 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.