In early April 2017, the 7th Circuit Court of Appeals in Chicago ruled that employer discrimination against an employee's sexual orientation is illegal. In an 8-3 decision, the 7th Circuit held that Title VII of the Civil Rights Act of 1964 affords the same protections to sexual orientation as it does to sex.
Title VII of the Civil Rights Act of 1964 makes it illegal for employers to discriminate on the basis of race, religion, national origin, color, and sex. For many years, the 7th Circuit understood that Title VII's prohibition on discrimination on the basis of sex excluded sexual orientation. While the Supreme Court of the United States never expressly answered this question, the Supreme Court's recent decisions regarding sex discrimination convinced the 7th Circuit to look at the language of Title VII with fresh and modern eyes.
The Supreme Court's decisions over the last two decades broadly interpreted discrimination on the basis of sex to include interracial marriages, sexual harassment in the workplace (including same-sex sexual harassment in the workplace), and discrimination based on gender or sex stereotyping. The 7th Circuit used the Supreme Court's framework and analysis when reviewing Hively v. Ivy Tech Community College of Indiana.
In Hively, the Plaintiff was an openly married lesbian woman who worked for the Defendant as a part-time Adjunct Professor for fourteen years. Between 2009 and 2014, the Plaintiff sought and applied for a full-time position at Ivy Tech at least six times. In 2014, her part-time contract was not renewed and the Plaintiff filed a charge with the EEOC, believing that the Defendant was spurning her employment opportunities because of her sexual orientation.
The 7th Circuit interpreted the language of Title VII's prohibition on discrimination on the basis of sex to mean that the Plaintiff was being disadvantaged because she was a woman and did not conform to "gender stereotypes." Simply put, if the Plaintiff was born a man but everything else stayed the same, the Defendant would have not discriminated against her. The 7th Circuit believed allowing a policy on sexual orientation discrimination was based on assumptions about what was considered proper and normal behavior for someone of a given sex. The 7th Circuit reasoned this can no longer stand in light of the Supreme Court's 2015 decision regarding same-sex marriages as a fundamental liberty that is protected by the Equal Protection Clause and Due Process Clause of the United States Constitution.
This is a landmark and historical ruling for the protection of sexual orientation in the workplace.