In a recent ground-breaking decision, the U.S. Court of Appeals for the Seventh Circuit held that discrimination on the basis of sexual orientation is a form of sex discrimination that is prohibited by Title VII of the Civil Rights Act of 1964. The case, which was decided by the full court (en banc) on April 4, 2017, is Hively v. Ivy Tech Community College of Indiana.
Sexual Orientation Discrimination is Sex Discrimination
Title VII prohibits covered employers from discrimination on the basis of a person’s “race, color, religion, sex, or national origin.” The Seventh Circuit is now the first federal court of appeals to recognize that discrimination by an employer on the basis of an employee’s sexual orientation is a form of sex discrimination prohibited by Title VII.
Jurisdiction of Sex Discrimination Decision Outside of Texas
The Seventh Circuit, located in Chicago, Illinois, is the intermediate federal appellate court for the district courts in Illinois, Wisconsin, and Indiana. Thus, Hively is not controlling law for the federal district courts in Texas, which are within the Fifth Circuit where sexual orientation has not been recognized as a basis for a Title VII sex discrimination claim.
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Lesbian Denied Employment Opportunities
In the Hively case, the plaintiff Kimberly Hively is a lesbian who taught part-time at Ivy Tech Community College. She applied for at least six full-time positions at Ivy Tech but was never offered full-time employment. Ultimately, Hively’s part-time teaching contract was not renewed.
Sex Discrimination Claim filed with the EEOC
Hively filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) based on sexual orientation discrimination and eventually filed a lawsuit in the U.S. District Court for the Northern District of Indiana. The lower court dismissed Hively’s action for her failure to state a claim on which relief could be granted. A panel of the Seventh Circuit affirmed the lower court’s dismissal. Subsequently, the full Seventh Circuit reheard the case en banc, reversed the district court, and remanded the case for further proceedings.
Full Panel of Judges heard this Sex Discrimination Appeals Case
The full Seventh Circuit had to interpret the statute, 42 U.S.C. § 2000e-2(a), to determine whether discrimination on the basis of Hively’s sexual orientation is discrimination because of her “sex” within the meaning of Title VII. The Seventh Circuit initially observed that often statutory prohibitions are broad and go beyond the principal evil (i.e., sex discrimination) to cover other comparable evils.
Hively used the comparative method to argue that she was subjected to discrimination because of her sex. She argued that had she been a man (instead of a woman) in a relationship with a woman, then Ivy Tech would not have discriminated against her. The Seventh Circuit agreed with Hively’s argument.
Hively also used an associational theory to advance her claim that discrimination on the basis of sexual orientation is sex discrimination. Under this theory, courts have concluded that a person who is discriminated against because of the protected characteristic of the person with whom she associates is actually being discriminated against because of her own characteristic. In accepting Hively’s associational theory of discrimination, the Seventh Circuit stated that if the sex of either partner in a lesbian relationship were changed, then the outcome would be different. Thus, Title VII would also prohibit discrimination against Hively based on the sex (female) of her partner. The essence of Hively’s claim under either of her arguments is that she would not have suffered employment discrimination had her sex been different.
Discrimination Based on Sexual Orientation is Sex Discrimination
In interpreting the relevant part of Title VII, the Seventh Circuit looked to recent guidance from the U.S. Supreme Court in the areas of employment discrimination and “broader discrimination on the basis of sexual orientation.” The Seventh Circuit stated that in light of certain U. S. Supreme Court decisions and the “common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex,” the time had come for it to overrule its previous cases that found that sexual orientation discrimination was distinct from sex discrimination. Thus, the Seventh Circuit sitting en banc held that “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.”
Three judges on the Seventh Circuit joined in a blistering dissent. They referred to the majority opinion as “a statutory amendment courtesy of unelected judges,” “artifice,” and an “abstract thought experiment[ ].”
This Controversial Decision Will Probably be Challenged
It seems nearly certain that the federal circuit courts will split on whether or not sexual orientation discrimination is sex discrimination for purposes of Title VII. That means that the U.S. Supreme Court could decide this issue in the future.