In Kimberly Hively v Ivy Tech Community College of Indiana (Case 2017 WL 1230393 (7th Cir, April 4 2017)), the US Court of Appeals for the Seventh Circuit ruled en banc that Title VII of the Civil Rights Act prohibits discrimination based on sexual orientation. It is the first federal appellate court to take this position.

Facts

Kimberly Hively, a part-time adjunct professor, brought a claim of discrimination against Ivy Tech Community College after it denied her full-time positions on six occasions and eventually also declined to renew her part-time contract. Hively, who is openly lesbian, claimed that Ivy Tech had discriminated against her because of her sexual orientation. However, Ivy Tech moved to dismiss, arguing that Title VII prohibits discrimination on account of sex, not sexual orientation, and therefore Hively could not maintain her claim as a matter of law. The US District Court for the Northern District of Indiana agreed and granted Ivy Tech's motion.

Hively appealed to the US Court of Appeals for the Seventh Circuit, where a three-judge appellate panel acknowledged that prior Seventh Circuit opinions had found no protection for sexual orientation claims under Title VII.(1) Lacking authority to overturn the circuit's precedent decisions, the three-judge panel was compelled to affirm the lower court's decision dismissing the suit. However, the panel was unequivocal that:

"[O]ur society can[not] continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry."

As a result, a majority of the active Seventh Circuit judges voted to rehear the case en banc for the entire court to decide. The court decided on an eight-to-three vote that Title VII does indeed protect employees against discrimination based on sexual orientation.

Decision

Supreme Court guidance

The majority opinion reasoned that its decision was based on guidance from US Supreme Court decisions issued over the past three decades. The Seventh Circuit referenced Price Waterhouse v Hopkins (490 US 228 (1989)), where the employer denied Ms Hopkins of partnership for several years not because she was a woman, but because she was not feminine enough. The employer informed Hopkins that if she wanted to become partner, she needed to "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry". The Supreme Court ruled that an employer which discriminates against an employee based on whether that person conforms to gender stereotypes is engaging in sex discrimination under Title VII.

The Seventh Circuit also referenced Oncale v Sundowner Offshore Servs, Inc (523 US 75 (1998)), where Mr Oncale claimed that he was sexually harassed by several male co-workers. The unanimous Supreme Court found that same-sex harassment in the workplace is a type of sex discrimination covered by Title VII.

Further, the Seventh Circuit acknowledged the Supreme Court's more recent decision in Obergfell v Hodges (135 S Ct 2584 (2015)), which legalised same-sex marriage nationwide. The Seventh Circuit majority agreed that, in light of this decision, Title VII must be interpreted as prohibiting discrimination based on sexual orientation. Otherwise, it would create a bizarre and paradoxical result, where a person could get married and be fired the next day for that act.

No difference between gender stereotyping claims and sexual orientation claims

The majority opinion found that Hively's case represented "the ultimate case of failure to conform to the female stereotype" that required her to date a man, not a woman. Before the en banc decision, the three-judge panel had described the line between gender non-conformity claims and sexual orientation claims as "gossamer-thin". On rehearing, the en banc court went even further, finding no line between the two. As the US Supreme Court has long held that gender stereotyping claims are covered by Title VII,(2) and given that there is no difference between those claims and sexual orientation claims, Title VII must be read to cover sexual orientation claims as well.

You cannot take the "sex" out of "sexual orientation"

The dissenting judges argued that Title VII prohibits discrimination based only on sex, not sexual orientation; but the majority opinion explained that it is impossible to separate the two. Discrimination based on sexual orientation automatically takes into account the victim's biological sex, whether as acquired at birth or as modified.

In addition, the majority rejected the argument that discrimination based on sex – as listed in Title VII – is limited to the traditional case of an employer not hiring a person based on his or her sex and hiring a person of the opposite sex instead. The majority pointed to Supreme Court decisions since the enactment of Title VII that have found the law to cover claims of sexual harassment(3) and same-sex sexual harassment(4) as sub-sets of sex discrimination. Therefore, the notion of discrimination based on sex – as written in Title VII – is not as rigid as the dissenting judges argued.

Associational dissemination

Lastly, the court found that discrimination against a person based on the protected characteristic of another with whom that person associates is also covered under Title VII. This was supported by the court's own precedent in Drake v Minn Mining & Mfg Co (134 F3d 878 (7th Cir 1998)), where it found that a white employee could bring a Title VII suit claiming employment discrimination based on the fact that he or she associated with African-American workers. Further, the court pointed to Loving v Virginia (388 US 1 (1967)), a 50-year old Supreme Court case addressing a law banning interracial marriages and finding such law unconstitutional because changing the race of one partner would affect whether the conduct was allowed. To the extent that the law drew distinction based on race, it was racially discriminatory. The Seventh Circuit argued that, by analogy, changing the sex of one partner in a sexual orientation claim would affect whether the discriminatory act took place. Therefore, to the extent that an actor is drawing distinction based on sex, the act amounts to sex discrimination.

Next steps

The court did not consider whether Ivy Tech had discriminated against Hively based on her sexual orientation, only whether Hively could sustain such a claim under the existing law. Finding that she could, the court remanded the matter to the lower court for additional proceedings to determine whether discrimination took place.

In the meantime, given that the Seventh Circuit has departed from other circuits' opinions on the issue and thereby created a circuit split, Ivy Tech has the option to seek a writ of certiorari from the Supreme Court.

Comment

This case applies to employers and employees in Wisconsin, Illinois and Indiana as the three states under the jurisdiction of the Seventh Circuit Court of Appeals. In these states, Title VII of the Civil Rights Act must be read as prohibiting discrimination based on sexual orientation.

However, this case may also apply to employers or employees in any other state. A court of law in any circuit may rely on the Seventh Circuit decision and reach the same conclusion that Title VII already prohibits discrimination based on sexual orientation. In addition, state law or local ordinance may already have prohibitions against discrimination based on sexual orientation, independent of federal law.

Therefore, employers are recommended to review and, where applicable, update their internal policies and procedures to ensure that they have mechanisms in place to address discrimination and harassment based on sexual orientation.

For further information please contact Raluca Vais-Ottosen at DeWitt Ross & Stevens SC by telephone (+1 608 255 8891) or email (rvo@dewittross.com). The DeWitt Ross & Stevens SC website can be accessed at www.dewittross.com.

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Endnotes

(1) Hively v Ivy Tech Community College, 830 F3d 698, 718 (7th Cir 2016).

(2) Price Waterhouse v Hopkins.

(3) Meritor Sa Bank, FSB v Vinson, 477 US 57 (1986).

(4) Oncale v Sundowner Offshore Servs, Inc.