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7th Circuit stands alone in ‘sex’ discrimination decision

Ryan Wiesner is an associate at Leib Knott Gaynor LLC in Milwaukee’s Third Ward. He handles complex litigation across the nation and has experience in defending employers in OSHA investigations, EEOC matters, and other employment-related litigation. He can be reached at rwiesner@lkglaw.net

Ryan Wiesner is an associate at Leib Knott Gaynor LLC in Milwaukee’s Third Ward. He handles complex litigation across the nation and has experience in defending employers in OSHA investigations, EEOC matters, and other employment-related litigation. He can be reached at rwiesner@lkglaw.net.

In July, the 7th Circuit Court of Appeals issued its panel decision in Hively v. Ivy Tech Community College of Indiana and affirmed a district court’s ruling that Title VII of the Civil Rights Act of 1964 does not redress sexual-orientation discrimination in the workplace. 830 F.3d 698.

Judge Rovner, writing for the panel, conceded that the court was limited because of its past decisions concluding that sexual orientation could give rise to “sex” discrimination under Title VII. But she noted that “it seems unlikely that our society can continue to condone a legal structure in which employees can be . . . discriminated against solely based on who they date, love, or marry” and all but invited the Supreme Court to review and overturn the 7th Circuit’s decision or Congress to pen “new legislation.”

The Supreme Court’s insight, though, wasn’t needed yet. In a decision handed down on April 4, the 7th Circuit, sitting in a rare en banc session, reversed itself and became the first federal circuit court in the country to find that sexual orientation is included in Title VII’s definition of “sex.”  The result is federal protection against harassment and discrimination for gay and lesbian workers.

The case involved the statutory interpretation of Title VII’s prohibition against discrimination against any individual because of “race, color, religion, sex, or national origin,” found in 42 U.S.C. § 2000e-2(a). The specific question posed was whether the term “sex” in Title VII includes “sexual orientation.”

The plaintiff, Kimberly Hively, was an open lesbian who began teaching as a part-time adjunct professor at Ivy Tech Community College’s South Bend Campus in 2000. She applied for and was denied full-time status six times from 2009 through 2014. In the end, the school chose not to renew her part-time contract. She filed a pro se charge with the Equal Employment Opportunity Commission claiming Ivy Tech discriminated against her based on her sexual orientation, in violation of Title VII.

The EEOC issued her a right-to-sue letter and Hively filed a pro se lawsuit in the Northern District of Indiana. Ivy Tech responded with a motion to dismiss, arguing that Hively had failed to state a claim because sexual orientation is not a protected class under Title VII. The district court agreed, basing its decision on the 7th Circuit’s 2000 holding in Hammer v. St. Vincent Hosp. and Health Care Ctr., Inc., 224 F.3d 701, which concluded that a gay nurse could not maintain a Title VII action based on alleged “sexual orientation” discrimination.

A three-judge panel of the 7th Circuit affirmed the district court’s holding last July but the recent en banc rehearing resulted in a reversal. Chief Judge Diane Wood was the author of the decision, framing the question as whether Title VII’s prohibition against “sex” discrimination included wrongful conduct taken against an individual because of his or her sexual orientation.

Hively claimed discrimination under two theories. She first asserted a claim under the “tried-and-true comparative method,” which hinges on whether Ivy Tech would have treated her the same (failed to promote her) if all the facts in the case were the same except her sex. She next claimed associational discrimination, which looks at whether the discrimination, if any, was the result of her association with a protected class. The lead opinion ultimately found, based on the allegations in the complaint, that Hively described a case of “paradigmatic sex discrimination” under either theory and that Ivy Tech “disadvantaged her because she is a woman.”

Judge Wood recognized that the Supreme Court had yet to decide this exact issue, but relied on its past, related decisions for guidance. She first discussed the Supreme Court’s decision in Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998). That decision expanded Title VII to include same-sex sexual harassment (male-on-male harassment), despite that conduct not being a “principal evil” that Congress meant to subdue when it passed Title VII more than a half-century ago. Judge Wood, using this decision, concluded that just because Congress may not have intended to prevent sexual-orientation discrimination when it passed Title VII, that doesn’t mean the statute doesn’t now prevent that sort of conduct.

Judge Wood next relied on the Supreme Court’s holding in Loving v. Virginia, 388 U.S. 1 (1967) to vindicate Hively’s associational discrimination theory. The Loving Court, which struck down Virginia’s anti-miscegenation statue prohibiting interracial marriage, found it unlawful to discriminate against an individual based on his or her association with a person of a different race. Applying that decision to Hively’s case, Judge Wood considered it illegal associational discrimination based on sex to discriminate against a female for marrying or dating another woman.

Lastly, Judge Wood discussed the Court’s recent decisions in United States v. Windsor, 133 S.Ct. 2675 (2013) and Obergefell v. Hodges, 135 S.Ct. 2584 (2015), which identified a fundamental right for same-sex couples to marry. She found that not extending these holdings to protect Hively from sexual-orientation discrimination would create “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.” The 7th Circuit’s decision conforms with the EEOC’s position that sexual-orientation discrimination is a form of Title VII “sex” discrimination.

Judge Posner issued a concurrence and agreed with the holding but thought a more straightforward approach existed. He presented a thorough discussion of statutory interpretation and believed a Blackstonian approach was needed here to ensure the result would be a present-day interpretation of the 53-year-old Title VII. This meant interpreting the statute’s prohibition against “sex” discrimination to include protection for gay and lesbian individuals.

Judge Sykes wrote the dissent, joined by Judges Bauer and Kanne. They too believed the question was one of statutory interpretation, but disagreed with the “judge-empowering” definition used by Judges Wood and Posner. The dissenters, rather, remained “faithful to the statutory text” and read it “as a reasonable person would have understood it when it was adopted.” Since the 88th Congress clearly didn’t intend the term “sex” in Title VII to include sexual orientation, discrimination based on that characteristic was not precluded by the statute.

The 7th Circuit now stands as the only federal circuit court to find sexual orientation discrimination to be a form of Title VII “sex” discrimination. The Supreme Court is likely to review the 7th Circuit’s decision, if requested, since it has yet to weigh in on this issue and the Hively ruling creates a clear split among circuit courts that will require resolution.

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