INCLUSION OF SEXUAL ORIENTATION AS A TITLE VII PROTECTION RIPE FOR SUPREME COURT REVIEW
On April 4, 2017, the United States Court of Appeals for the Seventh Circuit (which covers Illinois, Indiana, and Wisconsin) ruled that sexual orientation is a protected status under Title VII of the Civil Rights Act of 1964 (“Title VII”). With this significant ruling, the Seventh Circuit has created a split among U.S. Circuit Courts, making the issue ripe for a definitive ruling by the Supreme Court.
Seventh Circuit’s Decision
Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin. The Seventh Circuit is the first federal appellate court to find that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII.
In its decision, the Seventh Circuit purposefully did not consider the legislative history behind Title VII, and instead relied on a prior Supreme Court decision holding that statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils. The Seventh Circuit majority also reasoned that its decision brings the Circuit’s law on this issue in line with developments in the Supreme Court over the last two decades, including a ruling that legalized same-sex marriage.
In finding that the plaintiff’s sexual orientation is protected under Title VII, the Seventh Circuit also relied heavily on Supreme Court cases finding that discrimination based on gender stereotyping is a form of sex discrimination. The court reasoned that “[a]ny discomfort, disapproval, or job decision based on the fact that the complainant—woman or man—dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.” The Seventh Circuit further compared discrimination on the basis of a same-sex relationship to discrimination based on racial associations (such as discrimination against a white employee because of his/her interracial marriage).
The Court’s holding allows the plaintiff in Hively, who is openly lesbian, to bring her claims against her former employer based on sexual discrimination under Title VII. The court did not decide whether the alleged misconduct in Hively (failure to promote the plaintiff to full-time employment or renew her part-time employment) was discriminatory or based on her sexual orientation.
Title VII, Sexual Orientation, and the Supreme Court
The dissent in the Hively decision may give a preview of what to expect on this issue from the Supreme Court. The dissenting judges call for an interpretation more faithful to the plain reading of the statutory text of Title VII, and decry the majority’s opinion as legislating from the bench. According to the dissent, legislation should be done by elected legislators. The dissent maintains that sexual orientation is an independent and distinct concept from a person’s sex, i.e., gender, and is not an enumerated protection under Title VII.
Conservative justices on the Supreme Court will be in the majority and likely will find this dissent persuasive. They themselves lean toward strict statutory interpretation, and in the case of Justice Thomas and newly-appointed Justice Gorsuch, originalism.
Sexual Orientation Is a Protected Status in Colorado and Many Other States
While the outcome of protection under Title VII is not yet definitively determined on a federal level, it is important to note that twenty-two states, including Colorado, and many employers in their own corporate policies, currently prohibit discrimination in employment based on sexual orientation.
 Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir., April 4, 2017) http://www.politico.com/f/?id=0000015b-3b68-d119-a9ff-3ffe464a0002. This is an en banc decision (that is, a decision of the full Seventh Circuit Court of Appeals). Previously, a panel of the Seventh Circuit upheld a district decision that sexual orientation is not expressly set forth as a protection under Title VII, and is not protected under Title VII as discrimination based on “sex.” See related article (http://www.rockymountainemployersblog.com/blog/2016/8/4/federal-appeals-court-rejects-eeocs-push-to-include-sexual-orientation-as-a-title-vii-protection ).
 42 U.S.C. § 2000e-2(a)(1).
 Over the past 35-years, the 1st, 2nd, 3rd, 4th, 5th, 6th, 8th, 10th, and 11th Circuits have found that sexual orientation is not protected under Title VII.
 See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998).
 See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
 Hively, supra at 14.
 Hively, supra at 42 (“Our role is interpretive only; we lack the discretion to ascribe to Title VII a meaning it did not bear at its inception….judicial statutory updating…cannot be reconciled with the constitutional design”).
 See Nina Totenberg, Judge Gorsuch’s Originalism Contrasts With Mentor’s Pragmatism, NPR.org (Feb. 7, 2017), http://www.npr.org/2017/02/06/513331261/judge-gorsuch-s-originalism-philosophy-contrasts-with-mentors-pragmatism.