Seventh Circuit to Reconsider Title VII Prohibition of Discrimination Based on Sexual Orientation

The U.S. Court of Appeals for the Seventh Circuit, in Chicago, has vacated the July 28, 2016, decision of a Seventh Circuit three-judge panel holding that sexual orientation discrimination is not sex discrimination under Title VII of the Civil Rights Act and granted rehearing en banc (by the full court). Rehearing an issue already decided by a smaller panel is rare. This may indicate a majority of the judges on the Court found flaw in the initial ruling.

The Court also announced on October 11, 2016, that oral argument for the rehearing is scheduled for November 30, 2016.

In Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. July 28, 2016), a three-judge panel said circuit precedent compelled its ruling, even though it found merit for Title VII coverage for persons discriminated against because of their sexual orientation. (See our article, Discrimination Based on Sexual Orientation Not Protected by Title VII, Federal Court Rules.)

We will monitor and provide an update after a final Seventh Circuit decision. Please contact Jackson Lewis if you have any questions about this or other workplace developments.