Full Appeals Court Rules Federal Law Forbids Sexual Orientation Discrimination in Employment

You’re applying for a job/So you’re filling out a form

And for all intents and purposes/You fit into the norm

Until it says to list your next of kin/But there's no box to fit you in

In a landmark decision, the U.S. Court of Appeals for the Seventh Circuit has held that the federal statute barring sex discrimination in employment forbids sexual orientation discrimination.  The 8-3 majority opinion by Chief Judge Diane Woods in significant measure tracks a well-reasoned decision about Title VII of the Civil Rights Act of 1964 adopted in a 2015 ruling by the Equal Employment Opportunity Commission (EEOC). Today’s decision in Hively v. Ivy Tech Community College is likely to be influential as litigants in other cases across the country continue to advocate the same interpretation of Title VII, likely leading the Supreme Court to take the issue up sooner rather than later.

The case arose when lesbian Kimberly Hively was repeatedly rejected for full-time positions and eventually had her part-time teaching contract not renewed by Ivy Tech Community College in Southbend, Indiana.  She sued pro se, arguing in part that Ivy Tech discriminated against her based on her sexual orientation and thus in violation Title VII’s ban on sex discrimination.  Her claim was rejected by the federal trial court, but on appeal she was represented by Lambda Legal.  A three-judge panel of the Seventh Circuit ruled against that argument, holding it foreclosed by older circuit precedent, which is binding on such panels until the Supreme Court or an “en banc” panel of all active Seventh Circuit judges overrules it.

Hively has now overruled such earlier Seventh Circuit precedent and held that, under Title VII, “discrimination on the basis of sexual orientation is a form of sex discrimination.”  The court concluded this as a matter of statutory interpretation, adopting its best view of Title VII without feeling obligated to defer to the EEOC’s interpretation reaching the same conclusion.  The Seventh Circuit court did follow the Supreme Court’s reasoning in a Title VII case about sexual harassment between people of the same sex, Oncale v. Sundowner Offshore Services, Inc.  The lesson it drew from Oncale?  “[T]he fact that the enacting Congress may not have anticipated a particular application of the law cannot stand in the way of the provisions of the law that are on the books.”

The EEOC’s decision in Baldwin v. Foxx had ruled sexual orientation discrimination a form of sex discrimination in part based on a sex stereotyping theory, the general bounds of which the Supreme Court had embraced in Price Waterhouse v. Hopkins in 1989.  Here, the full Seventh Circuit court concluded that “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.”  Hence, although the three-judge panel had “described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin,” the en banc court “conclude[d] that it does not exist at all.”

The Baldwin case also relied on an associational theory:  Courts had regularly held that Title VII, which also prohibits race discrimination in employment, is violated when an employer discriminates against employees or applicants in interracial relationships.  The EEOC said that discriminating against women who associate with women (as opposed to men who associate with women) similarly is sex discrimination, and the en banc court in Hively agreed.  It should be no defense to say an employer would discriminate against lesbians and gay men alike, just as it was no defense of laws against interracial marriage, held unconstitutional in Loving v. Virginia (three years after Title VII was enacted) to say that such marriage restrictions discriminated against white and black people alike if they engaged in interracial relationships.

Judge Richard Posner seemingly joined Chief Judge Wood’s majority opinion (despite misgivings about its use of Oncale and Loving) but wrote separately to emphasize that “statutory and constitutional provisions frequently are interpreted on the basis of present need and understanding rather than original meaning.”  In his view, such evolutionary interpretation is especially appropriate here because “[n]othing has changed more in the decades since the enactment of the statute than attitudes toward sex.”  (Because he gets the law right, in my view, and shows a humane view of lesbigay people, I’ll cut him his slack for identifying Renée Richards, who transitioned in 1975, as “the first transgender celebrity,” completely overlooking the widespread attention received by Christine Jorgensen, who transitioned in the early 1950s and was covered on talk shows and front pages of newspapers.)

Judge Joel Flaum, joined by Judge Kenneth Ripple, joined most of Judge Woods’s majority opinion but declined to join Part III, which invoked the Supreme Court’s trend of increasing protection of lesbigay persons in its constitutional decisions.  In their view, the statutory interpretation was fairly simple:  “discrimination against an employee on the basis of their homosexuality is necessarily, in part, discrimination based on their sex” because, in light of how sexual orientation is defined in our society, “[o]ne cannot consider a person’s homosexuality without also accounting for their sex.”

Judge Diane Sykes, joined by Senior Judge William Bauer and Judge Michael Kanne, dissented.  They pressed a by now familiar appeal to “democracy” and a view of statutory interpretation that, despite their protestations to the contrary, nonetheless closely tethers laws to presumed expectations of their enactors of how those laws would apply, rather than reasoning logically about what the words say and mean, as Oncale seems to direct. 

Remember, Title VII prohibits discrimination because of sex.  Even were we to think the dissenters right that “[t]o a fluent speaker of the English language—then and now—the ordinary meaning of the word ‘sex’ does not fairly include the concept of ‘sexual orientation[,]’” that would not make their position right. I’ve advanced parallel arguments elsewhere for why Title VII’s sex discrimination ban forbids anti-transgender discrimination (see pp. 264-265 of my article Acknowledging the Gender in Anti-TransgenderDiscrimination).  Even if “sex” refers to “male” and “female” and we set aside the circumstances of intersex persons, it remains the case, as the Hively en banc majority persuasively argued, that discrimination against someone because she is lesbian is discrimination “because of” sex.

Here, and in rejecting the comparisons the majority appropriately draws, the dissenters seem to think that we should pair up instances of discrimination, so that an employer who discriminates against gay men because of sex (though hiring women similarly attracted to men) and who discriminates against lesbian women because of sex (though hiring men similarly attracted to women) engages in no sex discrimination, rather than two instances of sex discrimination.  This is wrong, as legal scholars including Kenji Yoshino (see p.441 of The Epistemic Contract of Bisexual Erasure) and myself (see Making up Women:Casinos, Cosmetics, and Title VII) have argued in a variety of contexts.

To quote the dissent, “I could go on, but the point has been made.”  The majority opinion offers sound rejoinders to many of the dissenters’ subsidiary contentions.  With luck, other courts will see that and rule the same way.  This would go far toward reducing the discrimination lesbigay people face in many places throughout the country.

Trump and the Promise of LGBTQ Equality

I’ve always got my head in the clouds

Hope that I could find

One of them that’s silver-lined

As I write, it appears that Donald J. Trump will take office as the forty-fifth President of the United States.  Some (many?) people, myself included, deeply feared this and are anxious or worse about the prospect.  So, in an effort to help myself confront this new reality, I offer this brief exploration of one possible way to deal with it.

“As your president, I will do everything in my power to protect LGBTQ citizens,” Trump promised in his nomination acceptance speech to the Republican National Convention in July 2016.  Americans should hold him to that promise.  It doesn’t mean, as Trump seemed to think, we should embrace blatantly unconstitutional anti-Muslim immigration policies.  But it could and should mean a great deal.

(Reuters/Carlo Allegri)

Trump’s promise to protect LGBTQ persons – and, yes, I’m deliberately overlooking his rhetoric extending solicitude to citizens, since the Constitution guarantees equal protection of the laws to persons, not just citizens – means he should support the Equality Act and use the power of the presidency to help it become part of the law of the land.  In 2000 he publicly supported amending the Civil Rights Act of 1964 to ban sexual orientation discrimination (see his interview with The Advocate here); the Equality Act would accomplish much the same, but in a more comprehensive matter that would also protect against anti-transgender discrimination and that leaders on these issues in Congress believe would be most effective.

Trump’s promise to protect LGBTQ persons means he should abandon his intention to nominate Supreme Court Justices who would overrule the Court’s 2015 Obergefell decision, which held that the Constitution forbade government to exclude same-sex couples from legal marriage (aka “civil marriage”) on the same terms and conditions civil marriage is offered to different-sex couples.  The interaction of civil marriage and the U.S. legal order generally may be criticized on various grounds – why should any of us have to count on employment benefits that may or may not be offered in order to secure a basic right such as healthcare for us and our marital partners and children?  But so long as that is how the U.S. system is structured, LGBTQ people and our families will not be protected, and certainly not be protected equally with heterosexually identified persons, if we are denied access to or recognition of our marriages.

Trump’s promise to protect LGBTQ persons also means he should reject efforts to exempt us from the benefits of our state, local, and national antidiscrimination laws.  He should not repeal executive orders that forbid sexual orientation and gender identity discrimination, which would expose us to the harms of the discrimination those orders are designed to prevent.  He should not support the so-called First Amendment Defense Act, which would grant a government sanctioned right to discriminate to people who disapprove of the marriages or other relationships of LGBTQ persons.  Such targeting of us is the opposite of protection.

There is much, much more that Donald Trump would have to do as President to live up to his promise to “do everything in my power” to protect LGBTQ persons.  Let us hope that he does.  And more than that, let us insist that he does.  Let us never let him forget his words.  Some of Trump’s campaign pledges were unjust; some were unconstitutional.  But the pledge to protect LGBTQ persons to his utmost extent is in itself noble, worthy of our constitutional order.  We all need to press our representatives in government to hold Donald Trump to this promise of equality.

Sexual Orientation Discrimination Against Jurors Gets Heightened Scrutiny, Unconstitutional, Ninth Circuit Court of Appeals Holds

“We are all our own jury,/some day we’ll be put on trial.”

In a unanimous opinion authored by Judge Stephen Reinhardt, the U.S. Court of Appeals for the Ninth Circuit held that peremptory strikes of potential jurors on the basis of their sexual orientation is unconstitutional.  The court’s opinion in SmithKline Beecham Corp., dba GlaxoSmithKline v. Abbot Laboratories, decided January 21, 2014, may ultimately be even more significant for its holding that sexual orientation discrimination challenged under the Equal Protection Clause is subject to heightened scrutiny, not mere rationality review, a holding that goes beyond what the Ninth Circuit had said in Judge Reinhardt’s opinion in the Proposition 8 litigation (Perry v. Brown, holding California’s constitutional amendment stripping same-sex couples of the right to marry violated federal Equal Protection Clause because it could not survive even rational basis review).

The litigation began when SmithKline Beecham sued Abbot Labs over a dispute regarding a licensing agreement and the pricing of HIV meds (something Abbott dramatically raised following its agreement with SmithKline).  The case went to trial, and defendant Abbot used its first peremptory strike to remove a potential juror who indicated that he had a male partner.  The court’s opinion refers to him as “the only self-identified gay member of the venire,” but it cites no evidence other than the male juror candidate’s statements and pronouns referring to his partner, so he may well have been bisexual, a possibility the opinion fails to mention.  Either way, a strike of him because he was gay or bisexual would have been a strike based on his sexual orientation, so the court’s ultimate conclusion probably is unaffected by its assumption.

Although peremptory strikes differ from strikes “for cause” in that they do not require a striking attorney to identify bias on the part of the potential juror, they cannot be exercised for constitutionally impermissible reasons.  The Supreme Court held in Batson v. Kentucky (1986) that peremptory strikes based on race violate the Equal Protection Clause.  It subsequently extended that holding to cover peremptory strikes regardless of whether it’s a prosecutor or a defense attorney striking, and whether it’s a criminal or a civil case.  In J.E.B. v. Alabama ex rel. T.B. (1994) the Supreme Court extended Batson to hold that equal protection also forbids jury strikes based on sex.  It has not yet considered the question whether the same is true of strikes based on sexual orientation.

A significant part of the answer to that question is whether sexual orientation discrimination is generally subject to heightened scrutiny or just rational basis review under the Equal Protection Clause.  (J.E.B. said that where discrimination against a group receives only rational basis review, jury strikes on that basis do not violate equal protection.)  But that too is a question the Supreme Court has not expressly answered.  In its highest profile ‘gay rights’ cases – Romer v. Evans (1996), which invalidated an anti-lesbigay amendment to Colorado’s state constitution under the federal Equal Protection Clause, Lawrence v. Texas (2003), which struck down Texas’s same-sex only ban on oral and anal sex under the federal Due Process Clause , and United States v. Windsor (2013), which held that the section of the “Defense of Marriage Act” that ignored lawful marriages of same-sex couples violated equal protection – the Supreme Court has repeatedly failed to name and so definitively resolve the level of scrutiny that equal protection demands when government discriminates on the basis of sexual orientation.

Admitting this, the panel opinion had to decide whether sexual orientation discrimination is subject to heightened scrutiny.  Earlier Ninth Circuit precedent concerning the military’s “Don’t Ask, Don’t Tell” had faced a similar question regarding Lawrence v. Texas.  In Witt v. Department of the Air Force, the Court of Appeals had to decide what kind of scrutiny applied to the military exclusion of lesbigay people under the Due Process Clause.  Lawrence did not say, so the Court of Appeals had to look to “what the Court actually did,” that is, what kind of analysis it conducted.  Doing likewise here to make sense of Windsor’s equal protection holding, the Ninth Circuit concluded that Windsor’s analysis was inconsistent with the great deference and mandatory consideration of hypothetical state purposes required under minimal rational basis review.  Accordingly, the Ninth Circuit panel determined that heightened scrutiny applies under the Equal Protection Clause to sexual orientation discrimination.  Judge Reinhardt’s opinion also held that earlier Ninth Circuit case law applying only rational basis review to sexual orientation discrimination challenged as violating equal protection was no longer good law because of the Supreme Court’s decision in Windsor.  (Minor quibble: the panel’s opinion says that the Supreme Court in Lawerence v. Texas recognized one Supreme Court decision, Department of Agriculture v. Moreno (1973), as applying “a more searching form of rational basis review,” when it was only Justice O’Connor’s opinion concurring in the judgment that espoused that position.)

Then, acknowledging that the histories of discrimination against racial minorities, against women, and against lesbigay vary (actually, the court again ignored bisexual persons to focus on “gays and lesbians”), and that gay and lesbian people were not openly excluded from juries the same way women (of any races) and African Americans (of any gender) were, the court recounted some of the pervasive discrimination lesbigay people have historically faced in the U.S. in governmental employment, immigration law, and military service, grounded in degrading stereotypes.  This helped establish that anti-lesbigay jury strikes stem from and cause the same kinds of injustices, for individuals, groups, and the entire polity, that warrant interpreting equal protection to forbid race- and sex-based strikes:

 “Strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals. They tell the individual who has been struck, the litigants, other members of the venire, and the public that our judicial system treats gays and lesbians differently. They deprive individuals of the opportunity to participate in perfecting democracy and guarding our ideals of justice on account of a characteristic that has nothing to do with their fitness to serve.”

The Court of Appeals also rejected Abbott’s exhortation not to extend Batson to sexual orientation-based strikes in order to protect individuals’ privacy rights.  The court thought those concerns significant, but was confident that the privacy of potential jurors can be protected through other means.  The court also rejected Abbot’s argument that it should not reach the Batson extension issue because none of SmithKline’s legal claims should have been allowed to reach the jury.  The Ninth Circuit Court of Appeals recognizes no harmless error exception to Batson violations, and even if there were, at least one of those claims required jury trial, the court held, but the jury was tainted by the discriminatory strike.  Accordingly, the court reversed the trial court and remanded the case for a new jury trial.

If the reasoning of the court of appeals is sustained, it could have big implications for anti-lesbigay discrimination, including laws excluding same-sex couples from civil marriage.  It is not clear whether the full Ninth Circuit would likely vote for review by an en banc panel of eleven judges or whether the Supreme Court would be likely to grant review, should Abbot seek either.  There is no real conflict between Court of Appeals holdings on this, with the Ninth Circuit breaking new ground here.  The Court does not choose to hear “gay rights” cases very frequently, and it just decided Windsor in June of 2013.  On the other hand, it only takes four Justices to vote to grant review, and some Justices could feel that it might be good to decide the general equal protection level-of-scrutiny issue in a factual context that probably divides the U.S. public less than does the issue of marriage for same-sex couples.  The Supreme Court ducked that general question in Windsor; only time will tell whether it chooses to take it up in the jury service context.