Lora M. Jennings, Attorney

In a much-watched decision, the Seventh Circuit Court of Appeals ruled that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation.  

The case is brought by Kimberley Hively, who is openly lesbian, and who filed an administrative complaint alleging she had been discriminated against based on her sexual orientation.  Hively alleged that she had applied for, and been denied, several full-time employment positions with Ivy Tech Community College in South Bend, Indiana.   

The district court granted Ivy Tech’s motion to dismiss, after Ivy Tech argued that sexual orientation is not a protected class under Title VII or 42 U.S.C. § 1981.  A panel of the Seventh Circuit then affirmed the district court’s decision.  Hively then sought review by the en banc Seventh Circuit, which issued a lengthy decision in an 8-3 opinion in Hively’s favor.

The court explained,

The  question  before  us  is  not  whether  this  court  can,  or should, “amend” Title VII to add a new protected category to the  familiar  list  of  “race,  color,  religion,  sex,  or  national origin.” 42 U.S.C. § 2000e-2(a). Obviously that lies beyond our power. We must decide instead what it means to discriminate on  the  basis  of  sex,  and  in  particular,  whether  actions  taken on the basis of sexual orientation are a subset of actions taken on the basis of sex.

In answering this question, the Court addressed the comparative method, considering whether Hively would have been treated differently had her sex been different.  On this point, Hively alleged that if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else remained the same, Ivy Tech would not have refused to promote her and would not have fired her. The court concluded that these allegations described “paradigmatic sex discrimination.”  The Court further concluded that any 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.”   

The court next addressed the associational theory under which a person who is discriminated against based on the protected characteristic of one with whom she associates is being disadvantaged because her own traits.  Relying a line of cases beginning with Loving v. Virginia, the court concluded that “to the extent the statute prohibits discrimination on the basis of race of someone with whom the plaintiff associates, it also prohibits discrimination on the basis of the national origin, or the color, or the religion, or (as relevant here) the sex of the associate.”  

The decision stated that “(i)t would require considerable calisthenics to remove the 'sex' from 'sexual orientation,'" and that the effort to do so "has led to confusing and contradictory results." At the same time, the court stated its decision must be understood in the "area of broader discrimination on the basis of sexual orientation" and various other district court decisions that have recognized Title VII protections against such discrimination. The decision closed by stating simply that it 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."

Judge Posner wrote a concurring opinion that agreed with the majority opinion’s ultimate decision but disagreed with the majority opinion’s reliance on certain precedent. He emphasized that the Court’s ruling can be explained as a form of statutory interpretation that “can mean giving a fresh meaning to a statement . . . a meaning that infuses the statement with vitality and significance today.”  Judge Posner stated he would like to see the court “acknowledge openly” that the judges, not Congress, are “imposing on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted.”  He further stated,

This is something that courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch.  We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963-1965) carrying out their wishes.  We are not.  We are taking advantage of what the last half century has taught.

The dissent opinion, in which three judges joined, emphasized that the majority deployed a “judge-empowering, common-law decision method that leaves a great deal of room for judicial discretion.”  The dissent stated that the majority decision and Judge Posner’s opinion ignore the plain text of the statute and ignore the way in which a reasonable person would have read the statute when it was adopted in 1964.  The result of this is, according to the dissent, “a statutory amendment courtesy of unelected judges.”  

The dissent emphasized that the Seventh Circuit Court of Appeals has held that sexual orientation is not identified in Title VII and has “long and consistently held that employment decisions based on a person’s sexual orientation do not classify people on the basis of sex and thus are not covered by Title VII’s prohibition on discrimination ‘because of sex.’”  The dissent further noted that “all circuits agree that sexual-orientation discrimination is a distinct form of discrimination and is not synonymous with sex discrimination.”  

For now, the Hively decision is binding only in Illinois, Indiana, and Wisconsin. The decision clearly departs from previous decisions from the other Courts of Appeals, making this issue ripe for review by the Supreme Court.