In a previous post we discussed the Seventh Circuit’s decision in Hively v. Ivy Tech Community College, in which a three-judge panel concluded that Title VII did not protect an employee from discrimination based on her sexual orientation. The court recently granted the employee’s petition for en banc review and agreed to rehear argument in the case before all of the court’s judges.
The Hively decision was notable for the court’s struggle to follow precedent declining to extend Title VII to sexual orientation claims while acknowledging that district court cases and a recent EEOC ruling that rejected such precedent had actually demonstrated superior legal reasoning. Many observers believe it is only a matter of time until a federal appeals court extends Title VII’s protections to sexual orientation claims. We will be monitoring these developments and will keep you apprised of whether the Seventh Circuit takes the opportunity to become the first U.S. circuit court to do so.