The U.S. Court of Appeals for the Seventh Circuit recently held, in Hively v. Ivy Tech Community College of Indiana (No. 15-1720) (April 4, 2017), that discrimination because of sexual orientation is discrimination based on “sex” in violation of Title VII.
From the opinion:
Title VII of the Civil Rights Act of 1964 makes it unlawful for employers subject to the Act to discriminate on the basis of a person’s “race, color, religion, sex, or national origin … .” 42 U.S.C. § 2000e-2(a). For many years, the courts of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person’s sexual orientation. The Supreme Court, however, has never spoken to that question. In this case, we have been asked to take a fresh look at our position in light of developments at the Supreme Court extending over two decades. We have done so, and we conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination.
This decision comes shortly after the Second Circuit’s March 27, 2017 decision in Christiansen v. Omnicom Group, which – while permitting a gay may to proceed on his Title VII claim on a theory of gender stereotyping – held that it was powerless (absent being overruled by the Supreme Court or an en banc Second Circuit panel) to reconsider its precedents holding that Title VII’s prohibition of discrimination “because of … sex” does not prohibit discrimination on the basis of sexual orientation.
It is likely that the issue of whether Title VII prohibits sexual orientation discrimination will eventually reach the U.S Supreme Court.