Yesterday, the Seventh Circuit sitting en banc (the entire court) issued a significant decision under Title VII reversing years of circuit precedent. Specifically, in Hively v. Ivy Tech Community College of Indiana, No. 15-1720, 2017 U.S. App. LEXIS 5839 (Apr. 4, 2017), the court held that Title VII's prohibition on sex discrimination includes a prohibition on sexual-orientation discrimination. In other words, employers who discriminate on the basis of an individual's sexual orientation violate Title VII. This groundbreaking ruling puts the Seventh Circuit at odds with other circuits, including the Sixth (which oversees Ohio), setting up potential Supreme Court review.

In Hively, an openly gay part-time professor filed a Title VII complaint with the Equal Employment Opportunity Commission (EEOC) against her employer Ivy Tech, after she had sought and been denied full-time positions six times and her part-time contract was not renewed. The EEOC gave her a right-to-sue letter.

Under Seventh Circuit precedent, as with many other circuits, Title VII did not protect those who suffered discrimination on the basis of sexual orientation. The Hively court, however, decided to "take a fresh look at our position in light of developments at the Supreme Court extending over two decades." Id. at *2. Those developments included formative cases finding Title VII violations based on gender stereotyping and same-sex harassment, as well as cases finding due-process and equal-protection violations in non-employment cases, most recently regarding prohibitions on same-sex marriage. Hively, at *5-6 (citing, e.g., Obergefell v. Hodges, 135 S.Ct. 2584 (2015)); see also id. at *23-25. As the court noted, it creates "a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act." Id. at *6 (quoting the panel).

The Hively majority found two approaches compelling in its determination that the statute protected the lesbian plaintiff. First, it discussed the "comparative method," under which the relevant question was: if the plaintiff held all other things constant and changed only her sex, would she have been treated the same way? The court looked to Price Waterhouse v. Hopkins, 409 U.S. 228 (1989), in which the Supreme Court held that the practice of gender stereotyping falls within Title VII's prohibition against sex discrimination. The court concluded this case was no different. If the plaintiff had been a man sexually attracted to women, she allegedly would not have been discriminated against. Thus, just as in Hopkins, the alleged conduct here was "based on assumptions about the proper behavior for someone of a given sex." Id. at *16. She was discriminated against because she was a woman. See id. at *14.

The second approach the Court found compelling was the associational theory of discrimination, under which "a person who is discriminated against because of the protected characteristic of one with whom she associates is actually being disadvantaged because of her own traits." Id. at *18 (emphasis added). As the court noted, this approach began with Loving v. Virginia, 388 U.S. 1, 12 (1967), the seminal case striking down restrictions on interracial marriage. In that case, because the conduct (marriage) was only illegal because of the race of one's partner, the Court reasoned that the law unlawfully "rested on 'distinctions drawn according to race.'" Hively, at *21-22 (quoting Loving, 388 U.S. at 11). The same was true in Hively: "If we were to change the sex of one partner in a lesbian relationship, the outcome would be different. This reveals that the discrimination rests on distinctions drawn according to sex." Id. at *22. (And the fact that Loving dealt with racial associations, rather than with sex-based associations, "is of no moment," the court determined, since Title VII also prohibits discrimination on bases other than race. See id. at *22-23.)

In reaching its conclusion, the Seventh Circuit rejected the notion that it could infer any intent from Congress's failure, in recent years, to add sexual orientation as a protected class under Title VII. It also rejected the dissent's argument that sexual-orientation discrimination was excluded because the enacting Congress did not anticipate this form of discrimination―the dictionary at the time of Title VII's enactment, for example, did not include a definition of "sexual orientation." After all, the court reasoned, sexual harassment was not in the dictionary at the time, either. Yet no one questions that sexual harassment is included within Title VII's prohibition on sex discrimination. See, e.g., id. at *25 n.5.

The en banc decision included not only a dissent but also two concurrences, including one by Judge Posner arguing for "judicial interpretive updating"―an approach that would acknowledge that the court was giving new meaning to an old statute based on "present need and understanding." Id. at *32-33 (Posner, J., concurring); see also id. at *42 ("We understand the words of Title VII differently ... because we live in a different era, a different culture.").

This case, as the dissent put it, is "momentous." It is a victory for LGBTQ individuals, although it remains to be seen whether other circuits will follow suit and/or whether the circuit split the decision has now created will persuade the Supreme Court to accept review. The Sixth Circuit is one that conflicts with Hively. See Vickers v. Fairfield Med. Ctr., 453 F.3d 757 (6th Cir. 2006); Gilbert v. Country Music Ass'n, 432 F. App'x 516 (6th Cir. 2011). In Vickers, the Sixth Circuit rejected the Price Waterhouse v. Hopkins sex-stereotyping theory of liability that Hively embraces. Quoting a Second Circuit decision, the Sixth Circuit opined: "a gender stereotyping claim should not be used to bootstrap protection for sexual orientation into Title VII." Vickers, 453 F.3d at 764 (quoting Dawson v. Bumble & Bumble, 398 F.3d 211, 218 (2d Cir. 2005)).

The Second Circuit, however, may soon join the Seventh. It recently decided a case in which two of the three panel members stated, in a concurrence, that they were convinced by arguments "that sexual orientation discrimination is, almost by definition, discrimination "because of . . . sex," and that when the appropriate occasion presented itself, the court should revisit its past rulings "in light of the changing legal landscape." Christiansen v. Omnicom Group, Inc., No. 16-748, 2017 U.S. App. LEXIS 5278, at *14, 15 (2d Cir. Mar. 27, 2017) (Katzmann, C.J., concurring).

If the Second Circuit changes course, there may be room for the Sixth Circuit to do so, too. And the Sixth Circuit should. Its previous ruling makes no sense in light of the plain language of Title VII barring sex discrimination. And it leaves members of the LGBT community in Ohio, Michigan, Tennessee, Kentucky, subject to discrimination and unfair treatment in the workplace.

Chandra Law has considerable experience fighting against employment discrimination, including sex discrimination and retaliation, and protecting LGBT rights.