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.
