The federal appellate courts across the United States have nearly unanimously held that discrimination on the basis of sexual orientation was not prohibited under Title VII of the 1964 Civil Rights Act. Of the 13 appellate courts in the United States, the First, Second, Third, Fourth, Fifth, Sixth, Eighth, Tenth, and Eleventh Circuit Courts of Appeals have denied the protections of Title VII to individuals on this basis.
However, on April 4, 2017, the Seventh Circuit Court of Appeals issued an opinion holding that discrimination based on sexual orientation is a form of sex discrimination prohibited under Title VII. The Court recognized that the U.S. Supreme Court” has never spoken to that question,” but that a “fresh look” was necessary in “light of developments at the Supreme Court extending over two decades.” Hively v. Ivy Tech Community College of Indiana, No. 15-1729 (7th Cir. April 2017). The Court had ruled as recently as July 2016 to the contrary, that “discrimination based on sexual orientation [was] distinct from sex discrimination…” Id. at 3.
Washington state’s legislature amended the Washington Law Against Discrimination in 2006 to prohibit discrimination based on sexual orientation. See, RCW 49.60.030(1); see also, Washington Human Rights Commission Guidance. However, punitive damages are not available for violations of Washington’s anti-discrimination laws. These damages, although capped at $300,000, are available under Title VII. Washington state is in the Ninth Circuit Court of Appeals. The Ninth Circuit has not issued decisions to date which would contradict the Seventh Circuit’s decision. Therefore, the Hively decision may signal an acceptance in Washington’s federal district courts of claims under Title VII for discrimination based on sexual orientation.