In a landmark decision this week, the U.S. Court of Appeals for the Seventh Circuit became the first federal appellate court in the country to hold that Title VII of the Civil Rights Act of 1964 protects against workplace discrimination on the basis of sexual orientation.

In Hively v. Ivy Tech Comty. Coll. of Indiana, No. 15-1720, 2017 WL 1230393 (7th Cir. Apr. 4, 2017), the Seventh Circuit, sitting en banc, overturned a split Seventh Circuit panel that had been bound by earlier precedents excluding sexual orientation claims from protection under Title VII.

The Seventh Circuit in an 8-to-3 split decision held Ivy Tech Community College allegedly discriminated against adjunct professor Kimberly Hively on the basis of her sexual orientation when it refused to consider her for a full-time teaching position and eventually terminated her employment after someone reported seeing her kiss her girlfriend goodbye in the campus parking lot.

Hively advanced two arguments in support of her contention that sex discrimination includes discrimination on the basis of sexual orientation. Hively’s first contention—the “comparative method”—asked whether, holding all other things constant and changing only her sex, she would have been treated the same way. In other words, if Hively had been a man married to, living with or dating a woman, the college would not have refused to promote her and would not have fired her. The court described this scenario as “paradigmatic sex discrimination.” Hively’s second contention—the “associational theory”—argued she has a right to associate intimately with a person of the same sex.

Chief Judge Wood, writing for the majority, noted both arguments end up in the same place: sex discrimination. The Seventh Circuit thus concluded that “discrimination on the basis of sexual orientation is a form of sex discrimination.”

In a noteworthy dissenting opinion, three judges disagreed with the majority. The dissenters noted Title VII does not by its terms prohibit sexual orientation discrimination, and Congress—not a court—is authorized to implement legislative change.

The Hively decision, which is precedential for lower courts in Illinois, Indiana and Wisconsin, creates a circuit split that may provide the U.S. Supreme Court an opportunity to resolve the issue.

If you wish to visit with us about this decision, please contact your Kutak Rock LLP attorney or a member of our Employment Litigation Practice Group.