Seventh Circuit Is the First Federal Court of Appeals to Recognize Sexual Orientation as a Federally Protected Class

In Hively v. Ivy Tech Community College, hearing the case en banc, the Seventh Circuit became the first federal court of appeals to determine that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964.

The court stated that “it is impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.”

This landmark decision effectively prohibits discrimination and retaliation against applicants and employees on the basis of sexual orientation under federal law.

Although employees in Illinois and Wisconsin are already protected from discrimination based on sexual orientation under state laws, this new standard now applies to private Indiana employers.

The Seventh Circuit’s decision follows a current national trend of recognizing sexual orientation as a protected category. In 2015, the U.S. Supreme Court’s decision in Obergefell v. Hodges legally recognized same-sex marriage throughout the United States. Following Obergefell, the Equal Employment Opportunity Commission released an administrative decision that sexual orientation would be considered a “sex-based consideration” under Title VII, though the decision applied to federal employers only. In addition, 22 states prohibit sexual orientation discrimination in private employment; several more states prohibit sexual orientation discrimination in public employment.

Given the evolving status of LGBT rights, similar Title VII claims are likely to be filed. Although the Supreme Court or Congress could reverse this national trend, for the time being, it appears that the movement extending workplace protections to LGBT individuals is continuing.