The trailblazing Seventh Circuit Court of Appeals achieved a monumental result. And it only took 53 years after the enactment of Title VII of the Civil Right Act of 1964.
Below, I have a breakdown of yesterday’s historic decision in Hively v. Ivy Tech Community College.
Let’s start with the court’s conclusion:
Why is sexual orientation bias the same as sex discrimination? Let’s start with sex stereotyping.
It’s associational discrimination too.
Anything else?
Does it matter that Congress could have amended Title VII along the way?
A few judges concurred in the result, but took a different approach.
Judge Posner:
Judges Flaum and Ripple:
So what’s next?
- The few remaining employers in Illinois, Indiana, and Wisconsin that haven’t done so already, get their act together.
- Ivy Tech could appeal to the Supreme Court. But, is this defendant ready to be the one to plant its flag in this hill and defend it? Doubtful. Better to go back to the lower court and defend the case on the merits (i.e., it did not discriminate).
- The Second and Eleventh Circuits decide whether to hear similar cases en banc.
Kudos to the Seventh Circuit for getting on the right side of history.