Showdown Coming over Antidiscrimination Law

A recent prediction in this space turned out to be premature. In my post about the Seventh Circuit’s en banc decision in Hively v. Ivy Tech Community College[1]—which held that the word “sex” in Title VII of the Civil Rights Act of 1964 [2] includes “sexual orientation”—I forecast that the U.S. Supreme Court would grant cert and reverse the Seventh Circuit. For unknown reasons, the defendant-employer in Hively decided not to seek appellate review of the controversial ruling, foiling my prophesy. Instead, Ivy Tech Community College in Indiana will defend Hively’s employment-discrimination lawsuit on the merits.  Commentators on Hively have noted that “The Seventh Circuit is the highest court in the United States to advance such a holding, although the EEOC has been advancing such a position for some time.”

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