Yesterday, in Hively v. Ivy Tech Community College, the United States Court of Appeals for the Seventh Circuit became the first federal appeals court to rule that Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination. This is a groundbreaking decision.
Significantly, the court did not expand the scope of Title VII. It has no authority to do so. It merely interpreted the term "sex," and concluded that sexual orientation discrimination necessarily means treating someone differently because he is male or because she is female.
The easiest way to understand this is to imagine an employer considering whether to hire a female applicant who happens to be married to a man. Then imagine the exact same scenario except change the sex of the applicant to male. If the employer would hire the first individual but not the second, that is sex discrimination, because the only reason for the different result is the applicant's sex. That's what sexual orientation entails -- straightforward sex discrimination.
We'll be hearing a lot about the Hively decision.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.