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Seventh Circuit Holds that Discrimination on the Basis of Sexual Orientation Is a Form of Sex Discrimination Under Title VII

In Hively v Ivy Tech Community College of Indiana (Apr. 4, 2017, No. 15-1720) 2017 WL 1230393, 2017 US App Lexis 5839, the Seventh Circuit Court of Appeals held that discrimination on the basis of sexual orientation constitutes a form a sex discrimination for purposes of Title VII of the Civil Rights Act of 1964. See 42 USC §2000e–2(a)(1) (employer may not discriminate against employee “because of such individual’s . . .  sex”).

Kimberly Hively, who is openly lesbian, was a part-time, adjunct professor at Ivy Tech Community College. Over a 5-year period, she applied for at least six full-time positions, but was rejected each time. Then, in July 2014, the College did not renew her part-time contract. She thereafter filed a complaint with the EEOC, alleging that the College’s failure to hire her to a full-time position was due to her sexual orientation. Following the EEOC’s issuance of a right-to-sue letter, Hively filed an action in federal district court, alleging that the College had discriminated against her on the basis of sex in violation of Title VII. The College filed a motion to dismiss for failure to state a claim on which relief could be granted, arguing that sexual orientation was not a protected class under Title VII. The district court agreed and dismissed the case. A three-member panel of the Seventh Circuit affirmed, after which the circuit court judges voted to rehear the case en banc.

The Seventh Circuit, hearing the case en banc, reversed. Recognizing that the case centered on an issue of statutory interpretation, the court looked to the US Supreme Court’s decision in Oncale v Sundowner Offshore Servs., Inc. (1998) 523 US 75, 118 S Ct 998, in support of expanding the meaning of the term “sex” in Title VII: “The Court could not have been clearer: the fact that the enacting Congress may not have anticipated a particular application of the law cannot stand in the way of the provisions of the law that are on the books.” The Seventh Circuit noted that the Supreme Court has itself expansively interpreted the term to include both sexual harassment and discrimination based on a person’s failure to conform to a certain set of gender stereotypes, meanings the Congress that passed Title VII was unlikely to have understood were encompassed by the statute’s prohibition against discrimination based on “sex.”

With this understanding in mind, the court first analyzed Hively’s claim using the comparative method, which attempts to isolate the significance of the plaintiff’s sex to the employer’s decision. The question is whether changing the plaintiff’s sex, while leaving everything else the same, makes a difference. Hively argued that the College would not have refused to promote her or renew her contract had she been a man married to, living with, or dating a woman. The court held that “[t]his describes paradigmatic sex discrimination” because the College discriminated against her precisely because she is a woman:

Hively's claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man).

...

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. That means that it falls within Title VII's prohibition against sex discrimination, if it affects employment in one of the specified ways.

The court also analyzed Hively’s claim under the associational theory, which is the idea that a person who is discriminated against because of a protected characteristic of someone with whom he or she associates is, in actuality, being discriminated against because of his or her own traits. The Seventh Circuit analogized to the line of cases invalidating laws prohibiting interracial marriage:

Changing 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. 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.

Time will tell whether this case provides an opportunity for the US Supreme Court to make a definitive statement on this issue.

For a comprehensive discussion of Title VII’s prohibitions against employment discrimination, check out CEB’s Wrongful Employment Termination Practice: Discrimination, Harassment, and Retaliation.