As you may already know, every couple of years Congress considers whether to pass the Employment Non-Discrimination Act, a federal statute that would ban employment discrimination on the basis of sexual orientation, much as discrimination on the basis of race, sex, etc. are already banned. So far, the legislation has not yet been enacted, and that was about where things stood when I was in law school, although since then one attempt, H.R. 3685, passed the House in 2007 by a 235-to-184 vote, and another, S. 815, passed the Senate in 2013 by a 64-to-32 vote.

So I have been somewhat intrigued in more recent years as an argument has emerged quite prominently in some federal courts that employment discrimination on the basis of sexual orientation is already illegal. The argument is that Title VII’s ban on sex discrimination also entails a ban on discrimination on the basis of sexual orientation, and it has gotten enough momentum that it is coming to the en banc U.S. Court of Appeals for the 7th Circuit on Wednesday in Hively v. Ivy Tech Community College.

Read more at The Volokh Conspiracy