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In Historic Decision, Seventh Circuit Rules that Title VII Covers Sexual Orientation Discrimination

Lev Craig

In October, we reported that the U.S. Court of Appeals for the Seventh Circuit had vacated its July 2016 decision in Hively v. Ivy Tech Community College, where a former adjunct college professor brought suit under Title VII of the Civil Rights Act of 1964 (“Title VII”), alleging that her employer had refused to hire her for a full-time position because she is a lesbian. Yesterday, April 4, 2017, the Seventh Circuit reversed the district court’s decision and became the first Court of Appeals to hold that “discrimination on the basis of sexual orientation is a form of sex discrimination.”

Kimberly Hively, who is openly gay, started teaching part-time at Ivy Tech Community College in 2000. Between 2009 and 2014, she unsuccessfully applied for six different full-time positions. When the college also failed to renew her part-time contract in July 2014, Hively filed a charge of discrimination with the Equal Employment Opportunity Commission and subsequently brought suit pro se in the U.S. District Court for the Northern District of Indiana, alleging that she had been denied employment opportunities because she is a lesbian. The district court dismissed Hively’s complaint on the grounds that Title VII did not cover sexual orientation discrimination, and Hively appealed.

In its original decision in July 2016, the Seventh Circuit affirmed the lower court’s dismissal, explaining that it was bound to do so by circuit precedent and Congress’s legislative intent. However, the court expressed dissatisfaction with these constraints, pointing to the inconsistency and confusion created by existing case law. In October 2016, it vacated its decision and agreed to rehear the case en banc—an unusual move, typically granted only in cases involving questions of exceptional importance, in which a case is reargued before a panel of all active judges in a circuit. In yesterday’s 8-3 ruling, the Seventh Circuit reversed the district court’s decision, finding that Title VII’s protections extend to sexual orientation discrimination.

The court began by detailing the complicated, often confusing legislative history and case law surrounding Title VII and sexual orientation discrimination, concluding finally that “we have no idea what inference to draw.” Rather than looking to legislative intent, then, the Seventh Circuit based its analysis on Supreme Court precedent, focusing especially on Price Waterhouse v. Hopkins and Oncale v. Sundowner Offshore Servs., Inc. The court analyzed Hively using two theories: (1) the comparative method, and (2) the associational discrimination theory.

Under the comparative method, the court began by determining whether Hively had “described a situation in which, holding all other things constant and changing only her sex, she would have been treated the same way[.]” In other words, if Hively had been a man married to a woman, rather than a woman married to a woman, she would not have been subjected to discrimination. This, the court found, was “paradigmatic sex discrimination.” The court pointed to Price Waterhouse’s discussion of sex stereotyping, holding that sexual orientation discrimination fell into the same vein because policies that discriminate on the basis of sexual orientation are inherently “based on assumptions about the proper behavior for someone of a given sex.” Therefore, if an employer discriminates against an employee for not behaving in accordance with these assumptions, the employer has engaged in unlawful sex stereotyping under Title VII.

In its associational discrimination analysis, the court analogized to the Supreme Court’s holding in Loving v. Virginia that “discrimination on the basis of the race with whom a person associates is a form of racial discrimination.” Following the same logic, sexual orientation discrimination could be considered associational sex discrimination because “if we were to change the sex of one partner in a lesbian relationship, the outcome would be different,” revealing that “the discrimination rests on distinctions drawn according to sex”—just as in Loving, the fact that changing the race of one partner in an interracial relationship would change the outcome revealed a discriminatory racial distinction. Although case law regarding associational discrimination primarily dealt with racial associations, that did not preclude a plaintiff from bringing an associational sex discrimination claim: “No matter which category is involved, the essence of the claim is that the plaintiff would not be suffering the adverse action had his or her sex, race, color, national origin, or religion been different.” Consequently, sexual orientation discrimination was unlawful under Title VII under the associational discrimination theory as well as the comparative method.

While the Seventh Circuit’s decision applies only to states within the Seventh Circuit’s jurisdiction (Wisconsin, Illinois, and Indiana), we noted in Monday’s blog post that the Second Circuit has recently hinted at reconsidering its stance on sexual orientation discrimination. With the Seventh Circuit’s landmark holding, the future may see more circuits moving in this direction. If your employer has discriminated against you on the basis of your sexual orientation, contact The Harman Firm, LLP.

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