On April 4, 2017, the Seventh Circuit, sitting en banc, held that an employer’s sexual orientation discrimination violates Title VII of the Civil Rights Act of 1964.[1] Following in the footsteps of the Second Circuit,[2] the Hively majority opinion provides three different views demonstrating why discrimination based on sexual orientation is illegal under Title VII. However, the opinion includes an equally cogent dissent (in line with the Eleventh Circuit’s conflicting opinion[3]) and, therefore, this issue is one that is likely to be resolved by the Supreme Court at some point in the future. A brief overview of the decision and its potential implications for corporate decision-making is discussed below.

Largely ignoring the legislative history of Title VII,[4] the majority found that just because “Congress may not have anticipated a particular application of the law cannot stand in the way of the provisions of law that are on the books.”[5] In turn, the majority looked to the preceding 20 year history culminating in the Supreme Court’s 2015 decision in Obergefell v. Hodges,

135 S.Ct. 2584 (2015) ending state bans on same-sex couples’ marriages. In the pivotal quote from the opinion, Chief Judge Diane Wood stated:

It would require considerable calisthenics to remove the “sex” from “sexual orientation.”…But this court sits en banc to consider what the correct rule of law is now in light of the Supreme Court’s authoritative interpretations, not what someone thought it meant, one, ten, or twenty years ago. [Citations omitted.] The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.

In light of this finding, the majority’s opinion relies heavily on recent decisions to justify and contextualize its interpretation of Title VII’s protections for discrimination in the workplace.

On the other hand, in a concurring opinion, Judge Posner takes a pragmatic approach to Title VII, finding that evolving opinions and the “sexual revolution of the 2000s” require that courts not be held to be “obedient servants of the 88th Congress…”, noting that “[a]s society progresses, so must the courts.” [6]

In another interesting take, Judge Flaum’s concurrence turns on the finding that “[f]undamental to the definition of homosexuality is the sexual attraction of individuals of the ‘same sex.’” Thus, discriminating against Hively as a woman attracted to another woman is inextricably linked to her sex.[7]

Finally, the dissent by Judge Sykes is equally compelling. Her argument is simple. Title VII does not define discrimination based on sexual orientation, and there are various opinions distinguishing between the concepts of “sex” and “sexual orientation.” If there is to be protection for an employee’s sexual orientation in federal law, the solution for the dissenters is to pass a statute confirming same.

All four opinions provide a window into future jurisprudence in employment discrimination law. While it’s unlikely any progress will be made in the near future on a federal statute codifying protections for LGBTQ employees, a court could easily take three distinctly different approaches to further bolstering LGBTQ workplace protections. While a plain and narrow reading of the statute may disfavor these methods, it could prove to be a minefield in light of developments in state law, and likely most importantly, popular opinion on protecting LGBTQ workers.[8]

In light of the tide of public opinion, as well as the potential for media backlash (especially on social media) in response to incidents of LGBTQ employment discrimination, companies would be best served by not banking on Judge Sykes’ well-reasoned but unpopular opinion winning out in the Supreme Court. Although the Supreme Court once again has a conservative tilt given the confirmation of Justice Neil Gorsuch, a Supreme Court decision overturning Hively could result in the public outcry needed for the federal legislative push demanded by Judge Sykes. Therefore, to the extent companies have not revised their policies to date, it may be advisable to implement LGBTQ workplace protections. Strengthening workplace rights and protections for LGBTQ workers not only benefits these workers, but helps avoid any potential legal exposure.

[1] Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. April 4, 2017).
[2] Mark Hamblett, “Second Circuit Wrangles with Workplace Discrimination Question,” New York Journal, Jan. 20, 2017, http://www.newyorklawjournal.com/id=1202777310509/Second-Circuit-Wrangles-With-Workplace-Discrimination-Question?slreturn=20170307173302.
[3] Evans v. Georgia Regional Hospital, et al, No. 15-15234 (11th Cir. March 10, 2017): http://media.ca11.uscourts.gov/opinions/pub/files/201515234.pdf.
[4] Hively, supra, No. 15-1720 at 8 (“In our view, however, it is simply too difficult to draw a reliable inference from these truncated legislative initiatives to rest our opinion on them.”).
[5] Hively, supra, No. 15-1720 at 9-10 (citing Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79-80 (1998)).
[6] Hively, supra, No. 15-1720 at 34.
[7] Hively, supra, No. 15-1720 at 40.
[8] Lydia Wheeler, “Poll: Seven in 10 support LGBT nondiscrimination laws,” The Hill, July 1, 2015, http://thehill.com/regulation/246683-poll-7-in-10-americans-support-lgbt-nondiscrimination-laws.