Seventh Circuit Reluctantly Follows Precedent, Does Not Extend Title VII Sex Discrimination Protections to LGBT Employees

Sara Geenen

In Hively v. Ivy Tech Community College, the U.S. Court of Appeals for the Seventh Circuit recently held – albeit reluctantly – that Title VII does not protect individuals from discrimination on the basis of sexual orientation in the workplace. That court reached its conclusion by relying on longstanding precedent that the Title VII prohibition on discrimination based on “sex” extends only to discrimination based on a person’s gender, and not that aimed at a person’s sexual orientation, and noting that in the absence of an amendment to the law or a Supreme Court ruling, it was bound to that precedent.

The court acknowledged 1) that the EEOC recently concluded that “sexual orientation is inherently a ‘sex‐based consideration,’” and that the EEOC issued guidance in 2016 stating this opinion, and 2) that other courts in other judicial districts not bound by precedent, or willing to flout it, are reaching contrary conclusions. It also recognized that, despite being bound to its end result, it joined an abundance of other judicial opinions recognizing an emerging consensus that discrimination on the basis of sexual orientation in the workplace can no longer be tolerated.

The EEOC will, apparently, continue to pursue and prosecute cases of LGBT-related discrimination. In addition, federal sector employees and employees of federal contractors are entitled to additional protections that prohibit LGBT-related discrimination. While this area of law continues to develop at the federal level – and hopefully will evolve sooner rather than later to offer this very basic protection to those individuals residing within the Seventh Circuit (Wisconsin, Illinois and Indiana), Wisconsin law does protect individuals from workplace discrimination on the basis of sexual orientation.

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