Hurley Burish and Stanton, SC Attorneys at law

Sexual Orientation Discrimination in Employment: A Landmark Seventh Circuit Decision Holds Federal Law Now Applies

By: Attorney Andrew Erlandson


Phone: 608-257-0945

On April 4, 2017, the United States Seventh Circuit Court of Appeals released its opinion in Hively v. Ivy Tech Community College of Indiana, No. 15-1720, 2017 WL 1230393, in which the Court ruled, 8-3, that federal anti-discrimination law, commonly known as Title VII, prohibits employment discrimination on the basis of an employee’s sexual orientation.  The decision represents a clear and marked departure from two decades worth of national legal precedent, which had consistently held that Title VII covered only claims for discrimination on the basis of an employee’s sex – i.e., “traditional” gender-based discrimination.

In reaching its holding, the Court cited (i) soft spots in the reasoning of prior, gender-only discrimination cases, (ii) the difficulty of drawing clear legal lines distinguishing discrimination due to an individual’s gender conformity from discrimination based on an employee’s sexual orientation, and (iii) the Supreme Court’s recent recognition of same sex couples’ Due Process and Equal Protection Constitutional rights to marry. Obergefell v. Hodges, 135 S.Ct. 2584 (2015).  As to the latter, the Court noted that if the traditional view of Title VII application held, it would create the “paradoxical legal landscape in which a person can be married on Saturday and then be fired on Monday for just that act.”

The Seventh Circuit’s Hively opinion is a game-changer for employers and LGBTQ employees, as it places claims before the Equal Employment Opportunity Commission firmly in play when it comes to hiring and firing decisions.  That’s important, because Title VII affords claimants remedies not available under Wisconsin state law.  Even though Wisconsin ‘s Fair Employment Act has prohibited employment discrimination on the basis of sexual orientation since 1981, a claimant’s FEA remedies generally are limited to back pay and attorney’s fees.  Under Title VII, a claimant can recover not only those remedies, but also reinstatement and/or front pay, compensatory damages for out-of-pocket costs, humiliation, and mental anguish, and in cases involving intentional discrimination, punitive damages.

The Defendant in Hively, Ivy Tech Community College of Indiana, almost certainly will ask the United States Supreme Court to review and overturn the Seventh Circuit’s decision.  The Supreme Court may accept the case and resolve the issue, but more likely the Court will deny review now and wait to see how other federal circuits react to the Hively opinion.  In the meantime, Hively is the law of the land in the Seventh Circuit (Wisconsin, Illinois and Indiana), and must guide any assessment of exposure or claims arising from adverse employment action that could be considered sexual orientation-based discrimination.  The full Seventh Circuit opinion in Hively v. Ivy Tech Community College of Indiana is available here:


If you have any questions about your rights or responsibilities in connection with an employment determination, contact Attorney Andrew W. Erlandson at Hurley, Burish & Stanton, SC.