This post was written by Janine N. Fletcher and Matthew C. Luzadder and originally posted on Kelley Drye’s Labor Days blog.

On April 4, 2017, the Seventh Circuit became the first federal appellate court in the country to extend the protections afford by the Civil Rights Act of 1964 to discrimination on the basis of sexual orientation.  The 8-3 decision came after they held a rare en banc hearing on Kimberly Hively’s case (Hively v. Ivy Tech Community College).

The majority opinion written by Chief Circuit Judge Diane P. Wood cited several U.S. Supreme Court cases, including Price Waterhouse v. Hopkins and Loving v. Virginia, and agreed with Hively’s argument that, but for her gender, her employer would have kept her on staff.

“The Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line,” Judge Wood wrote.

At the en banc hearing, one of the most difficult questions was whether the Court should consider Congress’s inaction to amend the law to explicitly include sexual orientation.  The Court concluded the Court could not rely on the fact that Congress has considered adding “sexual orientation” to the list of protections.  However, Judge Posner (majority opinion and concurrence) emphasized that statues can change overtime, like the Sherman Act, and it is false to suggest the Court is “merely obedient servants of the 88th Congress (1963-1965) carrying out their wishes.”

We will continue to monitor whether other federal appellate courts follow suit and whether Ivy Tech Community College appeals the Seventh Circuit’s decision to the U.S. Supreme Court.