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Seventh Circuit Extends Civil Rights to Sexual Orientation

In June 2015, the Supreme Court legalized same-sex marriage across the United States in its Obergefell v. Hodges, 576 U.S. ___ (2015) decision. Although it was considered a victory for the LGBTQ community, that community's right to jobs, education, and other civil liberties remained unprotected from discrimination. For example, Professor Kimberly Hively filed a discrimination lawsuit against her employer, Ivy Tech Community College ("Ivy Tech"), for discriminatory employment practices based on her sexual orientation. Her claims were originally dismissed until they reached the Seventh Circuit.

On April 4, 2017, the Seventh Circuit became the first United States federal appellate court to extend discriminatory protection on the basis of sexual orientation under the Civil Rights Act ("CRA"). Although the Court acknowledged the "paradoxical legal landscape" of allowing a person to be married and subsequently fired for said act the next day, the circuit previously held that the CRA did not cover sexual orientation.

However, during the oral arguments, Circuit Judge Richard Posner questioned the basis of the court's precedent over sexual orientation. He asked Ivy Tech's attorney to name a group that benefited from such a precedent. The attorney could not answer the question.

Regardless of who may or may not be hurt by such a precedent, Judge Posner reasoned that Ivy Tech allegedly refused to promote Professor Hively because she was "(A) a woman who is (B) sexually attracted to women" which would make the alleged discrimination "at least in part, because of her sex," which is against the law under the CRA. The Seventh Circuit's 8-3 decision starkly contrasts from the Eleventh Circuit's ruling three months ago that the CRA does not prohibit employers from discriminating against employees based on their sexual orientation. Until, or if, the Supreme Court decides to weigh in, we are stuck with a split between the circuits.

The legal team at SFMS has substantial experience litigating employment matters. If you have any questions regarding this subject or this posting, please contact Nick Lussier ([email protected]) or Chiharu Sekino ([email protected]). We can also be reached toll-free at (866) 540-5505.

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Badash, David. "Federal Appeals Court Rules Sexual Orientation Is Protected Against Workplace Discrimination by the Civil Rights Act." The New Civil Rights Movement. Last modified on April 4, 2017.

Jones, Diana Novak. "BREAKING: Landmark 7th Circ. Ruling Extends Title VII To Sexual Orientation." Law360. Last modified on April 4, 2017.

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