Why it matters

Potentially foreshadowing U.S. Supreme Court review, a panel of the Seventh Circuit Court of Appeals held that Title VII does not permit sexual orientation discrimination claims, affirming dismissal of a professor's lawsuit against a university. Kimberly Hively alleged that Ivy Tech Community College did not renew her teaching contract or consider her for a permanent position because of her sexual orientation. But the federal appellate court said her claim was "beyond the scope of the statute." The issue is ripe for consideration by Congress or the U.S. Supreme Court, the panel noted, particularly with the "illogical result" of allowing "nearly indistinguishable" gender non-conformity claims. The current situation is "a somewhat odd body of case law that protects a lesbian who faces discrimination because she fails to meet some superficial gender norms—wearing pants instead of dresses, having short hair, not wearing make-up—but not a lesbian who meets cosmetic gender norms, but violates the most essential of gender stereotypes by marrying another woman. We are left with a body of law that values the wearing of pants and earrings over marriage," the Seventh Circuit said.

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 motion to dismiss. With much consternation, the Seventh Circuit Court of Appeals affirmed.

To begin with, prior precedent in the circuit—beginning with a pair of cases from 2000—made clear that "harassment based solely upon a person's sexual preference or orientation (and not on one's sex) is not an unlawful employment practice under Title VII." Without exception, the circuit "has been unequivocal" in following this precedent, the court said, which is also in line with all other circuit courts that have opined on the matter, including the First, Second, Third, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, and D.C. Circuits.

"Our holdings and those of other courts reflect the fact that despite multiple efforts, Congress has repeatedly rejected legislation that would have extended Title VII to cover sexual orientation," the panel said. "Moreover, Congress has not acted to amend Title VII even in the face of an abundance of judicial opinions recognizing an emerging consensus that sexual orientation discrimination in the workplace can no longer be tolerated."

The court noted that it could end the discussion there but elected to respond to a recent EEOC decision where the agency concluded that sexual orientation "is inherently a 'sex-based consideration,' and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII," as well as recent legal developments and changing workplace norms.

The current legal situation is complicated, to say the least, the panel wrote, with a line of cases where courts recognize claims from gay, lesbian, bisexual, and transgender employees who framed their Title VII sex discrimination in terms of discrimination based on gender non-conformity and not sexual orientation. However, this distinction is elusive, and courts have either disallowed claims where sexual orientation and gender non-conformity are intertwined or tried to tease apart the two claims to focus only on the gender stereotype allegations.

"In sum, the distinction between gender non-conformity claims and sexual orientation claims has created an odd state of affairs in the law in which Title VII protects gay, lesbian, and bisexual people, but frequently only to the extent that those plaintiffs meet society's stereotypical norms about how gay men or lesbian women look or act—i.e., that gay men tend to behave in effeminate ways and lesbian women have masculine mannerisms," the Seventh Circuit wrote. "By contrast, lesbian, gay or bisexual people who otherwise conform to gender stereotyped norms in dress and mannerisms mostly lose their claims for sex discrimination under Title VII, although why this should be true is not clear."

The cases create a "paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday just for that act," the court said. "For although federal law now guarantees anyone the right to marry any other person of the game gender, Title VII, to the extent it does not reach sexual orientation discrimination, also allows employers to fire that employee for doing so. From an employee's perspective, the right to marriage might not feel like a real right if she can be fired for exercising it."

Adding to the problem: a failure to recognize associational discrimination claims. While Title VII protects a white woman who is fired for romantically associating with an African-American man, a similar parallel is not found in the context of same-sex relationships. "[L]ogically it should also protect a woman who has been discriminated against because she is associating romantically with another woman, if the same discrimination would not have occurred were she sexually or romantically involved with a man," the court said, and yet the statute has not provided such protections.

Despite this, "the paradox is not our concern," the panel said, as "[o]ur task is to interpret Title VII as drafted by Congress." The legislature certainly has knowledge of the problem but "time and time again" has said "no" to every attempt to add sexual orientation to the list of categories protected from discrimination by Title VII.

Because of that, the court affirmed dismissal of the suit. However, it recognized that "[p]erhaps the writing is on the wall. It seems unlikely that our society can 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," the panel wrote. "The agency tasked with enforcing Title VII does not condone it, many of the federal courts to consider the matter have stated that they do not condone it and this court undoubtedly does not condone it. But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent."

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