By Elizabeth C. Buckley
The United States Court of Appeals for the Seventh Circuit issued a landmark opinion last week, holding that employment discrimination on the basis of sexual orientation is illegal under Title VII of the Civil Rights Act of 1964.
Title VII makes it unlawful for covered employers to discriminate with respect to the terms and conditions of employment (including the decision whether or not to hire an applicant or promote an employee) based on a person’s “race, color, religion, sex, or national origin.” Until last week, case law in the Seventh Circuit—and almost all other circuits—held that the prohibition on discrimination based on “sex” did not protect employees from discrimination based on their sexual orientation. These prior cases found that discrimination based on sexual orientation was distinguishable from discrimination “against women because they are women and against men because they are men.” Because a member of either sex could face discrimination on the basis of sexual orientation, it was thought that Title VII did not apply.
This week’s decision, in Hively v. Ivy Tech Community College, represents a reversal of these prior holdings in the Seventh Circuit. Hively, a part-time professor at Ivy Tech and a lesbian, alleges that her applications for six full-time positions with Ivy Tech between 2009 and 2014 were rejected and her part-time contract was not renewed due to her sexual orientation. Her case was initially dismissed because the Seventh Circuit was bound to follow its prior holdings that Title VII does not prohibit sexual orientation discrimination. But “[i]n light of the importance of this issue, and recognizing the power of the full court to overrule earlier decisions,” the judges of the Seventh Circuit voted to hear the case en banc.
The Hively Court based its decision to extend protection under Title VII to sexual orientation claims on three theories. First, under the “tried-and-true comparative method,” the Court isolated the variable of the plaintiff’s sex to determine whether her alleged adverse employment action was “because of” her sex. If Hively had been a man who forms romantic relationships with women, Ivy Tech would not allegedly not have fired or refused to promote her. Therefore, her treatment constitutes “paradigmatic sex discrimination” and the adverse action against Hively due to her sexual orientation was “because of” her sex.
Furthermore, the Court noted that Hively’s case is in line with the “gender non-conformity” line of cases. Such cases involve situations in which employers discriminate against women whose behavior or appearance does not conform to the employer’s stereotypical ideal of femininity (for example, women who don’t wear makeup or jewelry). Both the Seventh Circuit and the Supreme Court have held discriminatory treatment based on sex stereotypes illegal. The Hively Court determined that the plaintiff’s sexual orientation was analogous to other examples of gender non-conformity in that Hively failed to conform to the female stereotype of heterosexuality. Therefore, her adverse employment action was “because of” her sex.
Finally, the Hively Court relied on the “associational theory” illustrated in Loving v. Virginia, the seminal high-court case invalidating laws prohibiting interracial marriage. In Loving, the Supreme Court famously held that discrimination against a person because of the status (in that case race) of the person with whom she associates is the equivalent of discriminating against that person because of her own status. Accordingly, because Hively was allegedly discriminated against because of her romantic association with women, she suffered adverse treatment “because of” her sex.
Although the Hively decision is binding only in the Seventh Circuit, it creates a split among federal circuit courts of appeal. Because the Supreme Court has an interest in resolving circuit splits, the odds of a determinative and nationwide ruling on the issue of sexual orientation discrimination in the workplace have increased dramatically. It is, therefore, increasingly important for employees and employers to stay informed of developing jurisprudence in the context of workplace discrimination. Contact our firm with any questions about employment laws in the U.S. https://howardstallings.com