Full disclosure: I have a dog in this fight. As a gay man, I would be
happy if the Supreme Court decided that Title VII prohibits discrimination
based on sexual orientation.
Until now, federal appellate courts have always found that Title VII
does not protect employees against discrimination based on sexual orientation, including
the most recent decision last week by the Eleventh Circuit in Evans
v. Georgia Regional Hospital. However, those of us who heard the oral argument
before 11 judges of the Seventh Circuit last November 30, 2016 in Hively v. Ivy Tech Community College
would not be surprised if a conflict soon emerged among the circuits. (There
was also a vigorous dissent in Evans).
The Loving v. Virginia arguments that
were made in gay marriage cases appear to be resonating with judges who are
considering whether sexual orientation may simply be a form of sex
discrimination. In other
words, if you discriminate against a gay person because he or she is attracted
to someone of the same sex, you are essentially discriminating against them
because they are failing to conform to a gender stereotype.