Reshaping “Sex” Discrimination?

The Seventh Circuit recently became the first circuit to hold that “discrimination on the basis of sexual orientation is a form of sex discrimination” under Title VII of the Civil Rights Act of 1964 (“Title VII”). Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339, 341 (7th Cir. 2017). “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.” Id. at 340. On April 4, 2017, the Seventh Circuit issued its groundbreaking decision,[1] departing from this well-established law and overruling its previous cases. Id. at 341.

In Hively v. Ivy Tech Community College of Indiana, Kimberly Hively (“Hively”), an openly lesbian adjunct professor at Ivy Tech Community College of Indiana (“Ivy Tech”), sued Ivy Tech for sex discrimination under Title VII after Ivy Tech denied her applications for full-time positions on at least six occasions and refused to renew her contract for part-time employment in July of 2014. Ivy Tech filed a motion to dismiss, arguing that sexual orientation is not a protected class under Title VII. The motion was granted, and Hively appealed. In its 2016 decision, a panel of the Court of Appeals of the Seventh Circuit affirmed the district court’s ruling. Id. However, the Court later voted to rehear the case en banc, leading to the opinion discussed here. Id. at 343.

The Court’s interpretation of Title VII, in its most recent decision, was guided by Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (U.S. 1998), a case in which the Supreme Court “addressed the question whether Title VII covers sexual harassment inflicted by a man on a male victim.” Id. at 344. In addressing sexual harassment, the Oncale Court explained that “‘statutory prohibitions often go beyond the principal evil to cover reasonably comparative evils’” and the focus of interpreting those laws should be on “‘the provisions of [those] laws rather than the principal concerns of [the] legislators.’” Id. (quoting Oncale, 523 U.S. at 79). Thus, even though the Congress enacting Title VII “may not have realized or understood the full scope of the words it chose,” it would not be improper to interpret sex discrimination as covering discrimination on the basis of sexual orientation. Id. at 345.

The Court also found the two analytical theories proposed by Hively to be compelling. The first relied on the “comparative method,” which examines whether a plaintiff has “described a situation in which, holding all other things constant and changing only her sex, she would have been treated the same way.” Id. The Court found that “Hively[’s] alleg[ations] that if she had been a man married to a woman … and everything else had stayed the same, Ivy Tech would not have fired her” were paradigmatic sex discrimination. Id. In the Court’s view, Hively represented “the ultimate case of failure to conform to the female stereotype,” and her “claim [was] no different from the claims brought by women who were rejected jobs in traditionally male workplaces” in the past. Id. at 346. Hively’s second theory, “associational theory,” can be traced back to Loving v. Virginia, where the Supreme Court ruled that the freedom to marry could not be restricted solely on the basis of race. According to the “associational theory,” people are discriminated against on the basis of their own traits when they are discriminated against because of a protected characteristic of a person with whom they associate. Id. at 347.

In addition to Oncale and Loving, the Court cited a number of other Supreme Court decisions which it believed justified a finding that discrimination on the basis of sexual orientation is prohibited by Title VII:

  • Romer v. Evans: “a provision of the Colorado Constitution forbidding” state government “from taking action designed to protect ‘homosexual, lesbian, or bisexual persons’ violated the federal Equal Protection Clause.”
  • Lawrence v. Texas: a statute that criminalized “homosexual intimacy between consenting adults violated the Due Process Clause.”
  • United States v. Windsor: federal exclusion of same-sex partners from the definition of “spouse” violated due process and equal protection principles.
  • Obergefell v. Hodges: “the right to marry is a fundamental liberty right, protected by the Due Process and Equal Protection Clauses of the Fourteenth Amendment.”Id. at 349-50 (citations omitted). The Court concluded: “[t]he 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.” Id. at 350-51.

Although the current decision only impacts employers in the Seventh Circuit who are subject to Title VII, it could potentially impact other entities. First, anyone impacted by this ruling should track the case to see if it reaches the Supreme Court and, if so, whether the decision is upheld.[2] Second, if the holding is not reversed by the Supreme Court, it will be interesting to see whether the Court’s analysis and/or holding is applied to any other statutes as to expand the ruling to other contexts. Third, employers in other circuits should stand by to see whether their circuit will join the Hively Court and overrule previous precedent. 

[1] Chief Judge Wood wrote the majority opinion. Circuit Judge Posner wrote separately to explore an alternative approach. Circuit Judges Flaum and Ripple concurred, joining only Parts I and II of the majority opinion, and Circuit Judges Sykes, Bauer, and Kanne dissented.

[2] As of the date of the publication of this article, the case has not been appealed.

  • Julieta A. Kosiba

    Julieta A. Kosiba focuses her practice on civil litigation.

    She has experience in defending clients across a broad range of matters, including personal injury, property damage, premises liability, and product liability claims; ...

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Kerri Forsythe

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