Mollie G. MohanOn April 4, 2017, the Seventh Circuit issued a landmark decision, holding that sexual orientation discrimination qualifies as sex discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). The 8-3 ruling is the first by an U.S. Court of Appeals to hold that sexual orientation is prohibited under federal employment discrimination law.
As noted, in a previous Tueth Keeney Insight regarding this case, Hively v. Ivy Tech Community College, a panel of the Seventh Circuit had initially held that Title VII does not extend protection to employees who are discriminated against on the basis of their sexual orientation. The 7th Circuit Court vacated that decision on October 11, 2016 and reheard the case en banc.
In the en banc decision, issued April 4, 2017, the US Court of Appeal for the Seventh Circuit held that “discrimination on the basis of sexual orientation is a form of sex discrimination” and is prohibited in the employment setting by Title VII.
The Seventh Circuit, relying on the US Supreme Court’s previous sex-stereotyping decision of Price Waterhouse v. Hopkins, reasoned that the plaintiff in this case, Kimberly Hively “represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.” In concluding that employment discrimination for this non-conformity was impermissible under Title VII, the Court noted that any “job decision based on the fact that the complainant””woman or man””dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.”
The Seventh Circuit Court also found sexual orientation discrimination was impermissible under the “associational” discrimination theory advanced in a different Supreme Court decision, Loving v. Virginia. The Seventh Circuit Court reasoned that, if Title VII prohibits discrimination based on the “the race of someone with whom the plaintiff associates, it also prohibits discrimination on the basis of the national origin, or the color, or the religion, or (as relevant here) the sex of the associate.”
In reaching this landmark holding, the Seventh Circuit majority decision quoted the United States Supreme Court in its 1998 decision in Oncale v. Sundowner Offshore Services, which stated, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.”
Judge Posner’s concurrence readily admits that the majority is reinterpreting the statute, going so far as to state a preference for the Court to “acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of “˜sex discrimination”™ that the Congress that enacted it would not have accepted.” Judge Posner argued that the law can and should evolve as societal definitions evolve””that the Court should take “advantage of what the last half century has taught.”
Judges Flaum and Ripple, making a purely textual argument, concurred in the decision and result on the ground that “homosexuality is necessarily, in part, discrimination based on their sex” because “one cannot consider a person’s homosexuality without also accounting for their sex.” Thus, because the employer considered the Plaintiff’s sex, its actions violated Title VII.
Judges Sykes, Bauer, and Kanne, dissenting from the decision, cautioned against judicial overreach and accused the majority of “a statutory amendment courtesy of unelected judges.” The dissenting judges took an originalist tack (even offering a quote from Justice Antonin Scalia’s book on statutory interpretation), arguing that the majority and concurring opinions are not “faithful to the statutory text, read fairly, as a reasonable person would have understood it when it was adopted.” The dissenting opinion pointed out that Title VII of the Civil Rights Act does not prohibit sexual orientation in its text, circuit courts have consistently held that sexual orientation is not a protected characteristic, and the Supreme Court has never seen the need to weigh in on the “unanimity among the courts of appeals.”
Interestingly, the majority’s reasoning seems to throw the doors open for not only sexual orientation discrimination claims but also gender identity claims. The Seventh Circuit Court explicitly stated that the line between a gender nonconformity claim and a sexual orientation claim “does not exist at all.” In light of the Supreme Court vacating the GG v. Gloucester decision regarding transgender discrimination in the public school setting, the Hively case may now be the standard for employees attempting to bring gender identity claims in federal court.