On April 4, 2017, the Seventh Circuit became the first federal appellate court to rule that sexual orientation discrimination is protected under Title VII of the Civil Rights Act of 1964 as a matter of law. In Hively v. Ivy Tech Community of College of Indiana, plaintiff was a part-time adjunct professor who had applied to six full-time positions over the span of five years. Plaintiff asserts she was denied a full-time position because of her sexual orientation. An earlier Seventh Circuit panel dismissed Plaintiff's claims, noting that it was bound by the Court's earlier precedents denying similar claims. The Court, sitting en banc, reversed, holding it was not adding sexual orientation as a protected characteristic under Title VII, but rather that sexual orientation cannot be separated from the already protected characteristic of sex. Simply put, one cannot remove the "sex" from "sexual orientation." Specifically, the Court reasoned that "any discomfort, disapproval or job decision based on the fact that the complainant – woman or man – dresses differently, speaks differently, or dates or marries a same-sex partner is a reaction purely and simply based on sex." Thus, any distinction between a gender nonconformity claim and a sexual orientation claim is non-existent. The Court also held that bias based on sexual orientation constitutes associational discrimination because "if we were to change the sex of one partner in a lesbian relationship, the outcome would be different." While this ruling is limited to those employers in the Seventh Circuit's jurisdiction (Illinois, Indiana and Wisconsin), the ruling is reflective of the growing trend of expanding sexual orientation based protections. This decision also comes on the heels of a conflicting Eleventh Circuit ruling, setting up a circuit split on the issue and priming the question for the Supreme Court. See Evans v Georgia Reg'l Hosp., No. 15-15234, 2017 WL 943925 (11th Cir. Mar. 10, 2017).
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