Sexual orientation “is a form of sex discrimination” — so ruled a federal appellate court in Illinois.  This is a departure from rulings from other appellate courts across the country which had determined that Title VII does not prohibit discrimination on the basis of sexual orientation.  The Seventh Circuit’s decision is discussed in today’s Long Island employment law blog.

In Hively v. Ivy Tech Community College of Indiana, the plaintiff is openly lesbian and worked as part-time professor for the defendant college.  She applied for multiple full-time positions, but was turned down and was ultimately fired for the part-time position.  Hively brought claims against the college alleging sexual orientation discrimination, but the EEOC, then the District Court, then a panel of the Seventh Circuit all dismissed the claims, the latter of which holding that sex discrimination is different than sexual orientation discrimination and that Title VII only prohibits discriminating against “women because they are women and against men because they are men.”

The Seventh Circuit then convened “en banc”, meaning that all judges which sit on the Circuit heard the case, instead of just a panel of three.  The Circuit reviewed leading Supreme Court cases including Price Waterhouse and Oncale which noted, respectively, that Title VII prohibits gender stereotyping and that in discrimination cases, it does not matter if the harasser and victim are of the same sex.  The Court further noted that because of the “importance of the issue . . . a majority of the judges in regular active service voted to rehear this case en banc.”