On April 4th, the Seventh Circuit Court of Appeals became the first federal Appellate Court to rule that under Title VII of the Civil Rights Act of 1964, sex includes sexual orientation. The Court’s ruling creates law only in Indiana, Illinois, and Wisconsin.
Every other Circuit Court of Appeals, except for the Ninth Circuit, has ruled that the term sex in Title VII does not include sexual orientation; these rulings were issued between 1979 and 2012. Federal Courts of Appeal often try to align their rulings with the decisions of the other Circuits. However, the Seventh Circuit decided that it was time to take a fresh look at this question in light of the Supreme Court’s 2015 decision in Obergefell (legalizing same-sex marriage) and the general shift in societal norms.
The fact that the federal Courts of Appeal have issued conflicting decisions means that the question is more likely to be picked up by the Supreme Court should other litigants appeal their cases to the highest level. The defendants in this case, Hively v. Ivy Tech Community College, have said they will not appeal.
Illinois and Wisconsin already have state laws that create employment protections based on sexual orientation, so there are no action items for employers in those states. Employers in Indiana, however, should ensure that their policies and practices do not allow for discrimination based on sexual orientation.