On April 4, 2017, the United States Court of Appeals for the Seventh Circuit (which serves three states – Indiana, Illinois and Michigan), ruled that sexual orientation discrimination is a form of sex discrimination under Title VII because it is “impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.” Hively v. Ivy Tech Community College of Indiana. This decision is the first by a federal court of appeals to hold that sexual orientation discrimination is actionable under Title VII. In fact, as the majority opinion notes, all of their earlier decisions as well as decisions by almost all other circuits had long held that Title VII did not support a claim for sexual harassment discrimination.
Although this decision is a first, it is not unexpected. Several lower courts had already allowed claims of sexual orientation discrimination based on gender stereotyping and harassment theories. Since 2015, the Equal Employment Opportunity Commission has taken the position that sexual orientation discrimination is prohibited under Title VII. And many states and cities include sexual orientation in their lists of protected classifications in their anti-discrimination laws.
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