Under Title VII of the Civil Rights Act, it’s illegal for covered employers to discriminate against a job applicant or employee on the basis of sex, among other protected characteristics. However, discrimination on the basis of sexual orientation has not been explicitly prohibited. In a 2017 case, Hively v. Ivy Tech Community College of Indiana, the Seventh Circuit held that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII. This ruling is different from the holdings of the nine other circuits.
The case arose when Hively, an openly lesbian adjunct professor, started teaching at a community college. She unsuccessfully applied for six full-time positions at the community college between 2009 and 2014. She believed that she was not getting hired full-time due to her sexual orientation and filed a charge to this effect with the Equal Employment Opportunity Commission (EEOC).
In court, the community college tried to get the case dismissed on the ground that sexual orientation was not a protected class under Title VII. The district court dismissed the case with prejudice. Hively appealed. A panel of the appellate court affirmed. It reasoned that discrimination based on sexual orientation was different from sex discrimination. The other circuits understood Title VII similarly.