Historic Case: Sexual Orientation Discrimination Violates Title VII 10:17, April 13, 2017

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Historic Case: Sexual Orientation Discrimination Violates Title VII

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True to signals at oral argument that the Seventh Circuit Court of Appeals’ position on sexual orientation discrimination was due for an imminent overhaul, a full court panel of that circuit has ruled that Title VII prohibits sexual orientation discrimination. This, despite contrary conclusions by three-panel opinions of the Second and Eleventh Circuit Courts of Appeal, both of which found that homosexual employees can sue for gender nonconformity discrimination under Title VII, but not for sexual orientation discrimination.

Title VII forbids workplace discrimination based on sex and other listed characteristics. The Seventh Circuit is the highest US court so far to interpret Title VII’s prohibition on discrimination based on “sex” to include sexual orientation discrimination. The court interpreted Title VII this way, even though Congress may not have considered that “sex” would have such a broad meaning when it enacted the law as part of the Civil Rights Act of 1964.

The Opinion

Ivy Tech Community College adjunct professor Kimberly Hively, who was openly lesbian, applied for at least six full-time positions with the college over five years starting in 2009. Each time, she was spurned. Ivy Tech terminated Hively’s contract in 2014. Believing that Ivy Tech had discriminated against her because she was a lesbian in violation of Title VII, Hively sued the college.

Ivy Tech argued that Congress had failed to act to specifically protect sexual orientation in the workplace. However, the court observed that since 2015, the Equal Employment Opportunity Commission (EEOC) had interpreted Title VII to include sexual orientation discrimination as a form of “sex” discrimination. (In fact, one year later the EEOC settled a landmark sexual orientation discrimination case in favor of a lesbian employee). Thus, one reason for Congressional inaction may be a belief that orientation bias is already covered by Title VII, according to the court. That being said, the court professed to have “no idea what inference to draw from congressional inaction” to amend Title VII “because there is no way of knowing what explains each individual member’s votes, much less what explains the failure of the body as a whole to change this 1964 statute.”

In looking into whether Title VII protects homosexual employees in the workplace, the court first observed that policies that discriminate based on sexual orientation don’t impact all employees equally. Rather, such policies assume that certain behaviors are proper for one sex but not for the other. “Any discomfort, disapproval, or job decision based on the fact that [an employee]—woman or man—dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex,” wrote the court. Workplace policies that discriminate based on sexual orientation, concluded the court, discriminate based on sex in violation of Title VII.

Unlike most circuit courts (and indeed, in an about-face from Seventh Circuit precedent), the full court panel did not try to draw a line between illegal sexual stereotyping and sexual orientation discrimination. “Our panel [of three judges who previously heard Hively’s case] described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all,” wrote the court. The full court panel, by contrast, found that “Hively’s [sexual orientation discrimination] claim is no different from the [gender nonconformity] claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing.”

Additionally, the court held that just as laws against interracial marriage and intimate relations (anti-miscegenation laws, which the Supreme Court banned in 1967) discriminate against anyone who has a romantic association with someone belonging to another race, workplace policies that treat employees negatively for their homosexuality discriminate against them for their romantic associations with someone of the same sex.

The court’s decision did not happen in a vacuum. The full court panel listed Supreme Court cases spanning more than 20 years that have stricken down laws that discriminated based on sexual orientation, culminating in the legalization of marital rights for homosexual partners. Employment law has been moving in a similar direction, including seminal Supreme Court cases holding that Title VII prohibits, in one case, job-related sexual stereotyping, and in another, sexual harassment by members of the same sex, the court observed.

Considering this history “it would require considerable calisthenics to remove the ‘sex’ from “sexual orientation,” and trying to do so has led to “confusing and contradictory results,” according to the court. The court also observed that many federal district courts agree with the EEOC, including courts in Connecticut, Pennsylvania, Florida, Alabama, and California. The court dismissed reasoning to the contrary:

The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.

Concurring and Dissenting Opinions

Eight of the eleven members of the full court panel ruled that Hively could make a claim for sexual orientation discrimination under Title VII. In addition to joining the majority opinion, Judge Posner wrote separately to say that while he agreed with the results, he did so more to “update” the interpretation of Title VII to keep up with social mores than out of agreement with all the legal arguments the majority cited. Posner lamented that:

it has taken our courts and our society a considerable while [from 1964 to 1986] to realize that sexual harassment . . . is a form of sex discrimination. It has taken a little longer [until 1989] for realization to dawn that discrimination based on a woman’s failure to fulfill stereotypical gender roles is also a form of sex discrimination. And it has taken still longer . . .  to realize that homosexuality is nothing worse than failing to fulfill stereotypical gender roles.

There was an additional concurring opinion by two members of the majority to emphasize the even without the historical backdrop of increased liberties for the LGBT community against which Hively’s case was decided, the text of Title VII still included sexual orientation within the meaning of the term “sex.”

By contrast, three judges dissented, believing that Title VII’s prohibition on discrimination based on “sex” should be understood as referring to biological sex only, as Congress probably intended the term in 1964. But as even the dissenting judges acknowledged, “any case heard by the full court is important. This one is momentous.” Hively v. Ivy Tech Community College.

The Big Picture

Judges on the Seventh Circuit were not the only ones to disagree with one another. Since the Seventh Circuit is the only federal appellate court to explicitly hold that Title VII covers sexual orientation bias, there is now a split of opinions among the circuit courts. This circuit split may prompt the US Supreme Court to decide the issue.

For companies in Illinois, Indiana, and Wisconsin, the Seventh Circuit’s ruling is now the law of the land. But wherever you are, if state or local law offers greater workplace protections based on sexual orientation, you need to follow the more protective law. Workplace policies should not only reflect the law, but fairly protect all workers regardless of sexual orientation. If a future Supreme Court rules that Title VII prohibits sexual orientation discrimination, employers that already ban such conduct will already be compliant by doing the right thing in the first place.

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Steve Treagus
Stephen Treagus, JD's, previous practice as an attorney specializing in employment litigation exposed him to the rough-and-tumble world of employment relationships gone awry. Today, this experience informs his articles and courses, helping employers avoid costly litigation and get employment law right. Stephen earned his JD from John F. Kennedy University School of Law and his BA from Sonoma State University.

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