Under Title VII, it is unlawful for employers to discriminate on the basis of sex. Historically, sex discrimination has been understood to be biological and, thus, to exclude discrimination based on sexual orientation. But sometimes, like Queen Elsa in Frozen, judges are tempted to sing “Let it go, let it go, can’t hold it back anymore.”

Cutting loose with that history, an en banc decision from the Seventh Circuit broke new ground in Hively v. Ivy Tech Community College. There, the appellate court held that discrimination on the basis of sexual orientation is a form of sex discrimination covered by Title VII.

In its ruling, the majority took the stance that it would be impossible to fathom discrimination based on sexual orientation without sex discrimination: i.e., if Hively had been male, she would not have been discriminated against for having a female partner. That is true but it is also a departure from history and from textual language.

Judge Posner, concurring with the majority opinion, attempts to explain those departures, stating that the court’s interpretation merely gives “fresh meaning” to the statutory language. He adds that “we are merely the obedient servants of the 88th Congress [from 1964], carrying out their wishes.” Title VII is not frozen as per the day of enactment, but open to “judicial interpretative updating.”

In the words of the Frozen title tune, Judge Posner asserts authority to “let it go” and “to test the limits and break through.” This prompted Mike Sheehan, co-chair of DLA’s Employment Group to ask his team to consider how to answer in oral argument if Judge Posner throw out that very question – “isn’t it true, counsel, that courts are not merely the obedient servants of former legislatures and have authority to take advantage of what the last half century has taught?”

Just as aspiring chess masters test themselves by replaying games played before their time, lawyers aspiring to master their craft practice by asking such questions with each morning’s advance sheets of new decisions. Let me share some samples of answers to the question posed:

  • “Your honor, no statute is frozen in time but every statute commands respect to the Constitutional division of authority between courts and legislatures. There is a key difference between the permissible — applying a 19th century antitrust statute to an e-commerce economy – and the impermissible – interpreting a 1964 discrimination statute to protect Cubs fans from discrimination. The former is faithful to that Constitutional division; the latter dishonors it.”
  • “Your honor – I believe your question was best answered by this court 23 years ago in the matter of Fuja v. Benefit Trust Life Ins. Co., 18 F.3d 1405, 1407 (7th Cir. 1994). Ms. Fuja asked this court to order her insurance carrier to cover lifesaving chemotherapy which the carrier had deemed experimental. This court denied Ms. Fuja’s request knowing that it would most surely lead to her death. As Judge Coffey explained there:

Despite rumors to the contrary, those who wear judicial robes are human beings, and as persons, are inspired and motivated by compassion as anyone would be. Consequently, we often must remind ourselves that in our official capacities, we have authority only to issue rulings within the narrow parameters of the law and the facts before us. The temptation to go about, doing good where we see fit, and to make things less difficult for those who come before us, regardless of the law, is strong. But the law, without which judges are nothing, abjures such unlicensed formulation of unauthorized social policy by the judiciary.

The answer to your question is that every American is injured when judges go beyond their Article III powers and make law without having been elected by the people.”

  • “Your honor, this is – in the immortal words of Mona Lisa Vito – a bullshit question.”[1]

Worthy answers all for lawyers who practice on imaginary cases over breakfast to be best prepared for their daily work (and part of the mystique and adventure of being seconded to the US practice from my home base in Germany). Future cases in other circuits and, potentially, a Supreme Court review will tell whether we will have to let go of the traditional meaning of the Title VII’s ban on sex discrimination countrywide or only in the Seventh Circuit (Illinois, Indiana, and Wisconsin).

[1] Mona Lisa Vito, as legal scholars well remember, was the expert witness in My Cousin Vinnie who made that line famous when the District Attorney attempted to challenge her qualifications as an expert witness:

D.A. Jim Trotter: Now, uh, Ms. Vito, being an expert on general automotive knowledge, can you tell me…what would the correct ignition timing be on a 1955 Bel Air Chevrolet, with a 327 cubic-inch engine and a four-barrel carburetor?
Mona Lisa Vito: It’s a bullshit question.
D.A. Jim Trotter: Does that mean that you can’t answer it?
Mona Lisa Vito: It’s a bullshit question, it’s impossible to answer.
D.A. Jim Trotter: Impossible because you don’t know the answer!
Mona Lisa Vito: Nobody could answer that question!
D.A. Jim Trotter: Your Honor, I move to disqualify Ms. Vito as a “expert”.
Judge Chamberlain Haller: Can you answer the question?
Mona Lisa Vito: No, it is a trick question!
Judge Chamberlain Haller: Why is it a trick question?
Vinny Gambini: [to Bill] Watch this.
Mona Lisa Vito: ‘Cause Chevy didn’t make a 327 in ’55, the 327 didn’t come out til ’62. And it wasn’t offered in the Bel Air with a four-barrel carb till ’64. However, in 1964, the correct ignition timing would be four degrees before top-dead-center.