In a landmark ruling, the 7th Circuit Court of Appeals has found Title VII of the Civil Rights Act of 1964 does prohibit discrimination on the basis of sexual orientation.
The opinion issued Tuesday comes following an en banc hearing in November 2016. Chief Judge Diane Wood wrote the majority opinion which found discrimination based on sexual orientation is a form of sex discrimination. Judge Richard Posner wrote a concurring opinion.
“Viewed through the lens of the gender non-conformity line of cases, (plaintiff Kimberly) Hively represents the ultimate cases of failure to conform to the female stereotype,” Wood wrote. “[S]he is not heterosexual.”
“Our panel described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all,” Wood wrote.
Kimberly Hively filed a complaint pro se against her former employer, Ivy Tech Community College, alleging she was repeatedly denied promotions and ultimately did not have her employment contract renewed because she is a lesbian.
The 7th Circuit’s decision in Kimberly Hively v. Ivy Tech Community College of Indiana, 15-1720, reverses the dismissal and remands the case to the U.S. District Court for the Northern District of Indiana.
Judge Diane Sykes, joined by Judges William Bauer and Michael Kanne, dissented on the grounds that the language of the Act does not cover sexual orientation.
“The majority deploys a judge-empowering, common-law decision method that leaves a great deal of room for judicial discretion,” Sykes wrote. “... The result is a statutory amendment courtesy of unelected judges.”
This story will be updated.