Until recently, no U.S. Court of Appeals for the Federal Circuit had extended Title VII to include sexual orientation as a protected class, meaning that LGBTQ individuals who suffer discrimination could not avail themselves of Title VII protection from bias. On the heels of Obergefell v. Hodges—the landmark U.S. Supreme Court decision favoring gay marriage—the Equal Employment Opportunity Commission (EEOC) issued a July 2015 administrative decision styled as Baldwin v. Foxx in which the agency held for the first time that a person alleging sexual orientation discrimination had a cognizable claim under Title VII. This administrative decision is not binding in a court of law but it underscores a societal shift toward greater protections for LGBTQ individuals and foreshadows a break from the significant body of case law holding that Title VII does not cover sexual orientation discrimination.

Title VII makes it “an unlawful employment practice for an employer … to fail or refuse to hire or to discharge … or otherwise to discriminate against any individual with respect to his [or her] compensation, terms, conditions or privileges of employment, because of such individual's … sex,” 42 U.S.C. Section 2000e-2(a)(1). Many courts have said the word “sex” cannot be construed to mean “sexual orientation” and therefore have held that Title VII does not prohibit discrimination based on a person's identification as gay, lesbian or bisexual.

To afford LGBTQ individuals some modicum of protection from bias, litigants have relied on U.S. Supreme Court jurisprudence indicating that Title VII does protect against claims for gender nonconformity and same-sex discrimination. Gender nonconformity means that a person does not behave in a way that aligns with traditional views about how a man or woman should behave, see Price Waterhouse v. Hopkins, 490 U.S. 228 (1999). Same-sex discrimination is when on-the-job harassment occurs by a supervisor or co-worker who is a member of the same sex as the alleged victim, as in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998). Commentators—and even some judges—have called for reform because the current methods for addressing unfair treatment of LGBTQ individuals under Title VII “embrace an 'illogical' and artificial distinction” between sexual orientation discrimination and gender nonconformity discrimination, as in Philpott v. New York, No. 16 -6778, U.S. Dist. LEXIS 67591 at *6-7 (SDNY May 3, 2017).

Seventh Circuit Embraces the Zeitgeist

Last summer, a three-judge panel of the Seventh Circuit addressed this topic when it affirmed dismissal of a case alleging sexual orientation discrimination but issued a lengthy dictum that questioned the continued viability of precedent barring Title VII protection. In October 2016, the Seventh Circuit granted a petition to rehear that matter en banc, which happens when the question presented concerns a matter of exceptional public importance or when the panel decision being reviewed may conflict with prior case law. Based on that rehearing, just two months ago, the Seventh Circuit became the first federal appellate court to hold that Title VII prohibits discrimination based on sexual orientation, see Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017). Judge Diane Wood authored the 8-3 decision and Judge Richard Posner filed a concurring opinion. Judge Diane Sykes, Judge William Joseph Bauer and Judge Michael Stephen Kanne dissented.