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The Seventh Circuit Court of Appeals held that sexual orientation discrimination is sex discrimination under Title VII. Other circuits to address this issue, including the Eleventh Circuit (which we previously discussed), have held otherwise.
In Hively v. Indiana Tech, an adjunct professor sued her employer for sexual orientation discrimination for failing to promote her to a full-time position and not renewing her part-time contract. Her claim was dismissed at the trial court and then on appeal to a three-judge panel of the Seventh Circuit on the basis that sexual orientation is not a protected class under Title VII. A majority of judges on the Seventh Circuit voted for the full Seventh Circuit to rehear the case (referred to as a rehearing en banc), leading to the opinion that sex discrimination includes discrimination based on sexual orientation.
This newly-created split among circuits could, and probably will, lead to the Supreme Court weighing in on this hotly-debated subject. In fact, the plaintiff in the Eleventh Circuit opinion of Evans v. Georgia Regional Hosp. et al., ruling that there is no Title VII protection for sexual orientation discrimination, has recently requested that the Eleventh Circuit rehear the case en banc.
For the time being, however, employees in Illinois, Indiana, and Wisconsin (states within the Seventh Circuit) can now bring a cause of action for sexual orientation discrimination under Title VII. Employers operating in these states should re-examine their handbooks, procedures, and policies to ensure that sexual orientation is included in, and treated the same as, other protected classes under Title VII.
For more information, please contact Tim Holdsworth at [email protected].