By: Sarah Schmanke

In April, the U.S. Court of Appeals for the Seventh Circuit issued a decision finding that Title VII’s prohibition on discrimination on the basis of sex includes discrimination on the basis of sexual orientation.  See Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. 2017).  Prior to this decision, other Circuit Courts (like the Eighth Circuit which includes Missouri) had rejected this interpretation of “sex” under Title VII.  Although the Seventh Circuit’s decision is not currently binding on federal courts in Missouri, it could mark the beginning of an expanded interpretation of “sex” by courts across the country in Title VII and Title IX cases.

In Hively, the Plaintiff, a former adjunct professor for Ivy Tech Community College of Indiana (“College”), alleged that she was denied a full time position and eventually nonrenewed because of her sexual orientation.  Hively sued the College for discrimination under Title VII’s prohibition on “sex” discrimination.  After a three judge panel of the Seventh Circuit affirmed the District Court’s dismissal of Hively’s case finding that “sex” under Title VII does not include “sexual orientation,” the Seventh Circuit elected to have the case reheard by all 11 Seventh Circuit judges.  Relying on a previous Supreme Court decision that prohibits discrimination based upon gender non-conformity, the majority of the judges found that “Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exception): she is not heterosexual.”[1]  The Court reached the conclusion that “it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex” and as a result “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.”[2]

While Title VII is a federal employment-discrimination statute, the impact of the Seventh Circuit’s decision may go beyond employment discrimination for public school districts. The Eighth Circuit, in addition to other Circuit Courts, has looked to interpretations of Title VII in analyzing Title IX.  Title IX prohibits any education institution receiving federal financial assistance from discriminating against an individual, including a student, “on the basis of sex.”  Given the history of interpreting Title IX consistently with Title VII, it is possible that courts may use the Seventh Circuit’s reasoning in Hively to extend Title IX’s protections to sexual orientation discrimination, expanding the claims which may be raised under Title IX.  As a result, there may be an increase of individuals who attempt to raise sexual orientation discrimination claims under Title VII or Title IX.

[1] Hively, 853 F.3d at 346.

[2] Id. at 351-352.