Since its passage, it was understood that Title VII did not extend to claims based on sexual orientation. Putting aside the issue of whether Congress should have amended the statute in light of current and not so current societal mores, the plain language of the statute made that clear. Yet, in 2012, the EEOC adopted a Strategic Enforcement Plan (SEP) which includes “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply” and made it a top enforcement priority. The EEOC has initiated many administrative proceedings and suits to do just that and no Circuit Court has had an opportunity to evaluate the issue brought to the fore by the EEOC-until now. In the case of Kimberly Hively v. Ivy Tech Community College, the Seventh Circuit has just ruled that Title VII’s protections do not extend to sexual orientation upholding the dismissal of a lawsuit brought by a part-time adjunct professor who claimed she was blocked from a full-time position at an Indiana college because of her sexual orientation. Inviting the Supreme Court to weigh in, U.S. Circuit Judge Ilana Rovner wrote for the court “Until that writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent.”
It is time that either Congress steps in to debate the issue or the Supreme Court must evaluate whether the statute, as written, and based on its legislative history-statutorily- extends to cover sexual orientation under the broad brush of “gender” discrimination.