After the United States Supreme Court's decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), a person could get married to a same-sex partner on Saturday and fired by his or her employer on Monday. Although gay and lesbian employees in Illinois, Wisconsin and a number of counties and cities in Indiana are protected from discrimination based upon sexual orientation, the question is whether a person's sexual orientation is protected from discrimination by the federal law known as Title VII of the Civil Rights Act of 1964. The situation has now changed in the Seventh Circuit, covering the states of Illinois, Indiana and Wisconsin. On April 4, 2017, the Seventh Circuit Court of Appeals ruled that discrimination on the basis of sexual orientation is a form of sex discrimination. In Hively v. Ivy Tech Community College of Indiana, Case No. 15-1720 (7th Cir. 2017), Kimberly Hively alleges that her employer blocked her applications for full-time positions and then did not renew her part-time contract. The federal district court granted the College's motion to dismiss the case and a three-judge panel of the Seventh Circuit agreed. On appeal, the entire Seventh Circuit Appellate Court reversed.
By taking this action, the Appellate Court rejected the distinction between discrimination on the basis of sex and discrimination on the basis of sexual orientation. By analyzing a long line of cases issued by the United States Supreme Court, the Appellate Court ruled that sexual orientation is a form of sex discrimination. For example, the Supreme Court ruled that the Constitution "protects the right of same-sex couples to marry." The Supreme court earlier ruled that "gender stereotyping falls within the prohibition against sex discrimination" and, in sexual harassment cases, it "makes no difference if the sex of the harasser is (or is not) the same as the sex of the victim." Rather than amending Title VII, which Congress has refused repeatedly to do, the Appellate Court examined the "broader context of the statue that...the legislature ...passed," noting the actions of the Supreme Court in looking at the broader context in other cases, such as cases involving the anti-trust laws.
Therefore, the Appellate Court ruled that "any discomfort, disapproval, or job decision based on the fact that the [employee] dresses differently, speaks differently, or dates or marries a same-sex partner is a reaction purely and simply based on sex." Such action violates Title VII. Therefore, when employers make decisions about employees, they need to consider whether their actions are based upon all of the employee's protected classifications, including sexual orientation.
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