Why it matters

Likely setting the stage for U.S. Supreme Court review, the en banc U.S. Court of Appeals for the Seventh Circuit ruled that Title VII prohibits discrimination on the basis of sexual orientation as a form of sex discrimination. Kimberly Hively sued Ivy Tech Community College after her contract was terminated in 2014, alleging the school denied her a full-time position because she is a lesbian. A district court tossed the suit, ruling that Title VII does not protect against sexual orientation discrimination and a panel of the Seventh Circuit affirmed last summer, albeit reluctantly. After agreeing to hear the case en banc, the Seventh Circuit reversed itself, describing the plaintiff’s claim as “paradigmatic sex discrimination.” “A policy that discriminates on the basis of sexual orientation does not affect every woman, or every man, but it is based on assumptions about the proper behavior for someone of a given sex,” the majority wrote. “The discriminatory behavior does not exist without taking the victim’s biological sex (either as observed at birth or as modified, in the case of transsexuals) into account.” Three members of the panel dissented. With recent contrary authority from the Eleventh Circuit, the issue could soon be before the justices.

Detailed discussion

Kimberly Hively began teaching as a part-time adjunct professor at Ivy Tech Community College in 2000. In 2013, she filed a charge with the Equal Employment Opportunity Commission (EEOC), claiming that she had been discriminated against on the basis of sexual orientation. She alleged that, although she had the necessary qualifications for full-time employment and had never received a negative evaluation, the college refused to even interview her for any of the six positions for which she applied and then failed to renew her contract.

The college told the court that Hively had made a claim for which there was no legal remedy because Title VII does not apply to claims of sexual orientation discrimination. A federal district court agreed and granted the employer’s motion to dismiss. With much consternation, the U.S. Court of Appeals for the Seventh Circuit affirmed.

Hively sought review by the en banc Seventh Circuit, which reversed in an 8-to-3 opinion.

“For many years, the courts of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person’s sexual orientation,” the majority wrote. “The Supreme Court, however, has never spoken to that question. In this case, we have been asked to take a fresh look at our position in light of developments at the Supreme Court extending over two decades. We have done so, and we conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination.”

For support, the Seventh Circuit relied on the comparative method as well as a line of cases from the Supreme Court protecting an individual’s right to associate, dating back to Loving v. Virginia.

Using the comparative method, the court asked: holding all other things constant and changing only her sex, would Hively have been treated the same way? No, the court concluded, because if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else stayed the same, Ivy Tech would not have refused to promote her and would not have fired her. “This describes paradigmatic sex discrimination,” the court wrote. “Ivy Tech is disadvantaging her because she is a woman.”

Finding that no line exists between a gender nonconformity claim and one based on sexual orientation, the court said “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.”

“Any discomfort, disapproval, or job decision based on the fact that the complainant—woman or man—dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex,” the court said. “That means it falls within Title VII’s prohibition against sex discrimination, if it affects employment in one of the specified ways.”

Using the associational theory, the Seventh Circuit reached the same conclusion, relying on a line of decisions dating back to Loving. In that case, “[c]hanging the race of one partner made a difference in determining the legality of the conduct, and so the law rested on ‘distinctions drawn according to race,’ which were unjustifiable and racially discriminatory,’” the court explained. “So too, here. If we were to change the sex of one partner in a lesbian relationship, the outcome would be different. This reveals that the discrimination rests on distinctions drawn according to sex.”

The court was not persuaded by Ivy Tech’s argument that Congress has frequently considered amending Title VII to add the words “sexual orientation” to the list of prohibited characteristics but has never done so. “In our view … it is simply too difficult to draw a reliable inference from these truncated legislative initiatives to rest our opinion on them,” the court said. “The goalposts have been moving over the years, as the Supreme Court has shed more light on the scope of the language that already is in the statute: no sex discrimination.”

Further, it is “neither here nor there” that the Congress that enacted the Civil Rights Act in 1964 may not have realized or understood the full scope of the words it chose, the court added. In the years since enactment, “Title VII has been understood to cover far more than the simple decision of an employer not to hire a woman for Job A, or a man for Job B,” with the Supreme Court recognizing that the prohibition against sex discrimination reaches sexual harassment—including same-sex workplace harassment—as well as discrimination based on a person’s failure to conform to a certain set of gender stereotypes.

The court also emphasized the changing societal acceptance and recognition by courts of sexual orientation discrimination. Many district courts have similarly found that Title VII protects against such discrimination, the EEOC has also adopted this position, and the Supreme Court has repeatedly protected the rights of gay and lesbian individuals, albeit outside of the workplace, in cases such as Romer v. Evans and United States v. Windsor.

“The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line,” the court wrote.

Judge Richard Posner filed a concurring opinion, advocating for an “alternative approach” that would recognize the court’s interpretation was “a fresh meaning to a statement … that infuses the statement with vitality and significance today.”

“Statutes and constitutional provisions frequently are interpreted on the basis of present need and present understanding rather than original meaning,” he wrote, citing the changing interpretation of the Sherman Antitrust Act, enacted in 1890. “Title VII of the Civil Rights Act of 1964, now more than half a century old, invites an interpretation that will update it to the present, a present that differs markedly from the era in which the Act was enacted.”

This “judicial interpretive updating” presupposes “a lengthy interval between enactment and (re)interpretation,” he added. “A statute when passed has an understood meaning: it takes years, often many years, for a shift in the political and cultural environment to change the understanding of the statute.”

Hively’s case was an appropriate vehicle for use of such updating, Judge Posner wrote, as “the concept of sex discrimination has since broadened in light of the recognition, which barely existed in 1964, that there are significant numbers of both men and women who have a sexual orientation that sets them apart from the heterosexual members of their genetic sex (male or female), and that while they constitute a minority their sexual orientation is not evil and does not threaten our society.”

A trio of judges filed a lengthy dissenting opinion, bemoaning the majority’s “judge-empowering, common-law decision that leaves a great deal of room for judicial discretion,” with the result of “a statutory amendment courtesy of unelected judges.” The dissent emphasized that none of the other circuits have found sexual orientation discrimination synonymous with sex discrimination and that Congress knows how to legislate against sexual orientation discrimination and has not done so.

“If Kimberly Hively was denied a job because of her sexual orientation, she was treated unjustly,” the dissent said. “But Title VII does not provide a remedy for this kind of discrimination. The argument that it should must be addressed to Congress.”

To read the opinion in Hively v. Ivy Tech Community College of Indiana, click here.