In a landmark ruling on April 4, 2017, the United States Court of Appeals for the Seventh Circuit, sitting en banc, became the first federal appellate court to officially recognize a discrimination claim under Title VII based solely on the plaintiff’s sexual orientation. The Court’s decision in Hively v. Ivy Tech Community College of Indiana reflects a groundswell of recent cases questioning whether sexual orientation claims are viable under Title VII. Although the Seventh Circuit is the only appellate court so far to hold that sexual orientation discrimination is a form of “sex” discrimination under Title VII, recent panel decisions from the Second and Eleventh Circuit Courts of Appeals signal that additional circuit courts might be poised to overrule existing case law to find similar protections.
Legal Landscape Surrounding Sexual Orientation Discrimination Claims
Title VII prohibits workplace discrimination “because of ... sex.” 42 U.S.C. § 2000e-2(a). Until recently, courts have consistently rejected claims based on sexual orientation, reasoning that “because of ... sex” in Title VII encompassed claims based on an individual’s biological sex, not an individual’s sexual orientation.
Although, prior to the Seventh Circuit’s Hively decision, courts had uniformly held that sexual orientation claims are not viable under Title VII, courts have struggled in recent years to explain why. Part of the confusion lies with the Supreme Court’s opinion in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), where the Supreme Court recognized “sex stereotyping” as a valid form of sex discrimination under Title VII. There, the Court held that men and women can state a viable claim for sex discrimination when they experience discrimination based on their failure to adhere to traditional gender norms.
In Hopkins, for example, the plaintiff alleged that she...
