On October 11, 2016, the Seventh Circuit Court of Appeals vacated a prior decision in its most recent sexual orientation case under Title VII and ordered rehearing en banc.
Kimberly Hively was a part-time adjunct professor at Ivy Tech Community College, beginning in 2000. In 2013, she sued Ivy Tech, claiming she was “blocked from full time employment without just cause” based on her sexual orientation. Specifically, she claimed that Ivy Tech refused to interview her for full time positions she applied for between 2009 and 2014 and was then non-renewed in July of 2014.
Ivy Tech argued that Title VII does not protect employees from discrimination on the basis of sexual orientation. The District Court agreed and dismissed Ms. Hively’s lawsuit.
In its original opinion, issued on July 28, 2016, the Seventh Circuit looked to the language of Title VII and concluded that it prohibited unlawful employment discrimination because of “race, color, religion, sex, or national origin.” The Court noted that its prior decisions made clear that discrimination “based solely upon a person’s sexual preference or orientation (and not on one’s sex) is not an unlawful employment practice under Title VII.” The Court’s precedents stemmed from a 1984 case where the Court analyzed the legislative history of Title VII and concluded that “the phrase in Title VII prohibiting discrimination based on sex, in its plain meaning, implies that it is unlawful to discrimination against women because they are women and men because they are men.” The Court noted that its precedent was in line with the other circuit courts, and consistent with the fact that Congress has repeatedly rejected legislation to extend Title VII protection to sexual orientation.
The Seventh Circuit considered the EEOC’s recent position that “an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” However, it ultimately concluded that, regardless of the EEOC’s position and the Court’s obligation to defer to such a position, “Title VII, as it stands, does not reach discrimination based on sexual orientation.”
On October 11, 2016, the Seventh Circuit granted rehearing en banc and vacated its July 28th ruling. The Court allowed the EEOC to file an amicus brief and allowed the EEOC time to participate in oral argument to assert its position. In its original decision, the Seventh Circuit noted that the EEOC had criticized courts (“particularly  this circuit”) and stated that it took “to heart” the EEOC’s criticism of the courts. By vacating its decision, allowing rehearing en banc, and allowing the EEOC to have such an active role in the rehearing, the Seventh Circuit may very well be signaling that it intends to vacate its prior precedent and “come out” as the first federal circuit court to adopt the EEOC’s position—that sexual orientation discrimination is sex discrimination under Title VII.
Oral argument is set for November 30, 2016. Stay tuned for more updates!