Seventh Circuit holds that sexual orientation discrimination is a form of sex discrimination under Title VII of the Civil Rights Act of 1964

The U.S. Court of Appeals for the Seventh Circuit released a landmark decision on April 4, 2017, opening the door for Title VII claims for alleged discrimination on the basis of sexual orientation.  Title VII of the Civil Rights Act of 1964 makes it unlawful for employers to discriminate on the basis of a person’s “race, color, religion, sex or national origin ….” 42 U.S.C. § 2000e-2(a).  Most federal courts (including the First Circuit—see Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999)) have understood the prohibition on “sex” discrimination to be distinct from “sexual orientation” discrimination.

The Seventh Circuit, sitting en banc, departed from this understanding in Hivley v. Ivy Tech Community College of Indiana, and held that the concept of sex discrimination is inclusive of sexual-orientation discrimination.  The plaintiff argued that if she had been a man married to a woman (as opposed to a woman married to a woman), and everything else remained the same, the defendant-employer would not have refused to promote her and would not have fired her.  The Seventh Circuit stated that this described “paradigmatic sex discrimination”—the plaintiff was disadvantaged because she was a woman.

The immediate impact of this holding may be limited in Maine, because (1) the First Circuit’s decision in Higgins remains good law, and (2) state law in Maine already prohibits discrimination on account of sexual orientation, see 5 M.R.S. § 4572(1)(A).  Nonetheless, the Seventh Circuit decision demonstrates the ever-evolving landscape of sex discrimination, and also invites Supreme Court review of an issue that may change this landscape even further.

Tyler J. Smith

Tyler J. Smith
Associate

Tyler J. Smith joined Libby O’Brien Kingsley & Champion as an associate in 2012. His practice includes a wide array of civil litigation and criminal defense matters—ranging from drunk driving defense to employment discrimination to defamation. Tyler is also an experienced appellate advocate. He has handled over 20 appeals, and has argued before the Maine Supreme Judicial Court… Read more »