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Update: 2nd and 11th Circuits Hold That Title VII Does Not Protect Against Sexual Orientation Discrimination. 7th Circuit Disagrees.

Published by and on May 5, 2017

The Seventh Circuit Court of Appeals held that Title VII prohibits discrimination based on an individual’s sexual orientation.

Shortly after this post was written, the Seventh Circuit Court of Appeals held that Title VII prohibits discrimination based on an individual’s sexual orientation. Unlike the Second and the Eleventh Circuits, the Seventh Circuit reasoned that sexual orientation discrimination is the same as sex discrimination, and “sex” is a protected trait under Title VII. Addressing the issue of Congressional inaction, the Seventh Circuit stated that Congress’ failure to amend Title VII to expressly include “sexual orientation” under the statute does not prohibit its protection under the broadly interpreted “sex” discrimination, which has been interpreted to reach sexual harassment in the workplace, same-sex harassment in the workplace, and gender stereotype discrimination.

The Seventh Circuit’s holding in Hively v. Ivy Tech Community College, No. 3:14-cv-1791 (7th Cir. Apr. 4, 2017) creates a Circuit split, which could send the issue of Title VII coverage of sexual orientation discrimination to the Supreme Court. Although the Hively holding only creates new precedent in the Seventh Circuit, employers everywhere should take note of what could become the national standard under Title VII. As previously discussed in our earlier post, employers should continue to hone workplace anti-harassment and anti-discrimination policies on sex and gender discrimination, and employers located in the Seventh Circuit should take care to amend their workplace policies to specifically cover sexual orientation discrimination.

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