Hively v. Ivy Tech Community College of Indiana: Title VII Prohibits Sexual Orientation Discrimination

Title VII of the 1964 Civil Rights Act prohibits employers from discriminating against employees and job applicants based on five traits, including sex. Since 1994 Congress has often been urged to recognize sexual orientation as a protected trait, as several state laws do, but it has not done so. But on April 4, 2017, the Seventh Circuit Court of Appeals held en banc that Title VII outlaws sexual orientation discrimination. Hively v. Ivy Tech Community College of Indiana. The court did so not by creating a sixth protected trait, but by ruling that sexual orientation discrimination is sex discrimination. Hively puts the Seventh Circuit squarely at odds with nine other circuits.
The word sex in Title VII has undergone quite a metamorphosis in 53 years. It was put in the original bill by a congressman who thought Congress would balk and kill the bill, but his amendment was approved without comment. Since then, with no legislative history to aid them, courts have had to discern the word’s meaning on their own. Early on they saw it as embracing only biological differences between women and men. But in the 1980’s, they adopted a broader, gender-based vi