The case is Hively v. Ivy Tech Community College, decided on April 4. Hively is a lesbian who worked for the College. After the College declined to renew Hively's employment, she sued under Title VII. The Seventh Circuit originally ruled against her, but the en banc court overturns Circuit precedent in ruling for Hively, adopting the EEOC's view that sexual orientation discrimination violates Title VII.
The Seventh Circuit opens its analysis by noting it has authority to take up this question. "The question before us is not whether this court can, or should, 'amend' Title VII to add a new protected category to the familiar list of 'race, color, religion, sex, or national origin.' 42 U.S.C. § 2000e-2(a). Obviously that lies beyond our power. We must decide instead what it means to discriminate on the basis of sex, and in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex. This is a pure question of statutory interpretation and thus well within the judiciary’s competence."
This language about the Court's capacity to take up this issue may not seem a remarkable proposition, but there was a time when courts had outright rejected the position that Title VII prohibits sexual orientation discrimination. But the world has changed, and the landscape governing the rights of gays and lesbians -- including the Supreme Court's ruling on same-sex marriage and intimate sexual endeavors -- makes this analysis of Title VII a logical next step. This dovetails with the Seventh Circuit's tutorial on statutory interpretation, noting that Title VII prohibits today what no one had anticipated in 1964, including sexual harassment, same-sex workplace harassment, as well as discrimination based on sexual stereotypes.
The Court summarizes Hively's position: "Hively offers two approaches in support of her contention that “sex discrimination” includes discrimination on the basis of sexual orientation. The first relies on the tried-and-true comparative method in which we attempt to isolate the significance of the plaintiff’s sex to the employer’s decision: has she described a situation in which, holding all other things constant and changing only her sex, she would have been treated the same way? The second relies on the Loving v. Virginia, 388 U.S. 1 (1967), line of cases, which she argues protect her right to associate intimately with a person of the same sex. Although the analysis differs somewhat, both avenues end up in the same place: sex discrimination."
On the pure discrimination angle, the Seventh Circuit reasons it this way:
Hively alleges that if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her. (We take the facts in the light most favorable to her, because we are here on a Rule 12(b)(6) dismissal; naturally nothing we say will prevent Ivy Tech from contesting these points in later proceedings.) This describes paradigmatic sex discrimination.The Circuit adds:
Viewed through the lens of the gender non-conformity line of cases, 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. Our panel 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. Hively’s claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man).The Seventh Circuit further holds that sexual orientation discrimination punishes people based on whom they associate with. In 1967, the Supreme Court made it illegal to prevent interracial marriages. Both parties to an interracial marriage suffered discrimination because of their race, the Circuit notes. That case was Loving v. Virginia. The Seventh also notes that the Second Circuit held in 2008 that it was unlawful for an employer to backstab an employee based on the race of his fiance. That's the Holcomb decision. The Seventh Circuit has utilized similar reasoning in the past. It finds now that the associational discrimination theory makes sense. "If we were to change the sex of one partner in a lesbian relationship, the outcome would be different. This reveals that the discrimination rests on distinctions drawn according to sex."
Judge Posner writes an interesting concurrence, taking a potshot at the recent sexual harassment scandal at Fox News. Three judges dissent.
As Second Circuit watchers know, the NY-based Circuit court recently decided against adopting the EEOC's position on sexual orientation discrimination and stood firm on a 1990 Second Circuit precedent that said discrimination against gays and lesbians does not violate Title VII. Two judges on that panel suggested the Court might someday consider adopting the EEOC's position. The plaintiff in that case won the appeal in any event because he did not conform to gender stereotypes, still the traditional way to win a Title VII case. Several cases are now pending in the Second Circuit that raise this issue, including the Zarda case, argued on January 5, 2017.