On April 4 2017, the Seventh Circuit Court of Appeals became the first appeals court to rule that sex includes sexual orientation. The Court’s ruling creates law in Indiana, Illinois, and Wisconsin.
Title VII of the Civil Rights Act of 1964 is a federal law that protects employees from discrimination on the basis of sex, race, color, national origin, and religion by their employer. This Title generally applies to employers with 15 or more employees, including federal, state, and local governments, as well as private and public colleges and universities, employment agencies and labor organizations.
In rulings issued between 1979 and 2012, every other Circuit Court of Appeals, not including the Ninth Circuit, has found that the term sex is separate from sexual orientation in Title VII. This means sexual orientation is not protected under anti-discrimination law in the other forty-seven states. Federal Courts of Appeal often try to maintain consistency in their rulings based on decisions of the other Circuits. However, when the Obergefell case led to the Supreme Court’s decision to legalize same-sex marriage in 2015, the Seventh Circuit decided it was time to take another, fresh look at this question. With the general shift in societal norms it is important to reevaluate decades old anti-discriminatory laws.
Even though it only currently creates law in these places, the fact that the federal Courts of Appeals have issued conflicting decisions, we may see this precedent expand into laws in more states should other people involved in lawsuits of this nature 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.