Earlier this week, the Seventh Circuit handed down a landmark decision in Hively v. Ivy Tech, determining for the first time that the federal law forbidding discrimination in the workplace includes discrimination based on sexual orientation.
Kimberly Hively, a lesbian, was a part-time adjunct professor at Ivy Tech Community College of Indiana. While employed there, she was reprimanded for kissing her girlfriend in a campus parking lot. For several years, she tried to obtain full-time employment, but she never received an interview. Eventually, the school declined to renew her part-time position.
Represented by Lambda Legal, Hively brought suit in 2014 under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of sex. However, Title VII had never been interpreted by any federal circuit to prohibit sexual orientation discrimination. At the trial court, Ivy Tech got the case dismissed by pointing out that very fact. A Seventh Circuit panel upheld the lower court’s decision. Hively then petitioned the Seventh Circuit to hear the case en banc, in which the case is reheard by all the appellate judges. This week, the court reversed the trial court’s decision in Hively’s favor.
This is, of course, to be applauded. It provides greater employment protections for people who aren’t straight, at least in the states in the Seventh Circuit—Illinois, Indiana, and Wisconsin. It signals that the concerns of many individuals regarding job discrimination will be taken seriously elsewhere, and it provides guidance for the other federal appellate circuits should similar cases arise. What it doesn’t do is make the thorny issue of figuring out how to consistently apply Title VII any easier.
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When it comes to sex, and what counts as discrimination based on it, Title VII is a messy creature. The text of the law reads: “It shall be an unlawful employment practice for an employer … to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to … sex.”
The problem with this is that the law doesn’t define “sex” anywhere. As a result, courts have been left to flail around trying to figure out what “sex” might encompass.
Over the years, the U.S. Supreme Court has enlarged the protections of Title VII. Title VII now prohibits sexual harassment in the workplace (including same-sex harassment) and forbids certain types of discrimination based on failure to conform to gender stereotypes. Outside the realm of Title VII, the Supreme Court has greatly enlarged the rights LGBTQ people enjoy, most notably and recently ruling in favor of marriage equality in Obergefell v. Hodges.
None of this jurisprudence is explicitly about sexual orientation and the workplace, however, and it shows in the way the multiple opinions in the case (a majority opinion, two concurrences, and a dissent) struggle with their framing. Only the majority opinion will bind future courts, but the concurrences and dissents will also be obsessed over and cited.
The majority opinion, written by Chief Judge Diane Wood, gets to its decision by saying the real test of whether Ivy Tech discriminated was whether they would have done the same thing to a man in Hively’s position:
The fundamental question is not whether a lesbian is being treated better or worse than gay men, bisexuals, or transsexuals, because such a comparison shifts too many pieces at once …. The counterfactual we must use is a situation in which Hively is a man, but everything else stays the same: in particular, the sex or gender of the partner.
This is a perfectly sound way to get at the problem, but it has the potential of limiting workplace protection to those who have partners. In other words, what if someone is fired for being a lesbian but is single? A court following this guidance might hold Title VII doesn’t apply, because the language of the decision implies the assessment of whether someone is being discriminated against turns on their choice of partner.
Judge Richard Posner’s concurrence, meanwhile, rests upon saying that sometimes political and cultural environments shift, which changes the understanding of a statute. Fifty-three years after the inception of Title VII, Posner writes, “the meaning of the statute has changed and the word ‘sex’ in it now connotes both gender and sexual orientation.”
This is an excellent approach, and has resonance for people who rightly understand that the law is a living, ever-evolving entity. It is also a philosophy that enrages conservatives who believe laws must be interpreted only through the lens of the people who wrote them.
Judge Joel Flaum, an 80-year-old Reagan appointee, also concurred, but his concurrence rests upon the idea that “discrimination against an employee on the basis of their homosexuality is necessarily, in part, discrimination based on their sex.” You can’t assess someone’s homosexuality without assessing their sex, he contended, because homosexuality by definition is characterized by being attracted to the same sex.
Judge Diane Sykes, who was shortlisted by the Trump administration for Antonin Scalia’s seat, wrote a predictable dissent. First, of course, it pushed back on Posner’s idea that statutes evolve. It then agrees that yes, attitudes about gay rights have changed dramatically in 53 years, but says that is a matter for legislatures. Finally, it says that, although Title VII does not define discrimination “because of sex”, that doesn’t matter because “the word ‘sex’ means biologically male or female.”
This is, of course, an outmoded definition of the word, in part because attitudes have changed. It is also in part outmoded because the scientific understanding of intersex individuals has advanced to the point where the term “biologically male or female” is a lot muddier. And this doesn’t even begin to get at how or whether Title VII might protect trans individuals who no longer identify as the sex they were assigned at birth: There is no indication in Hively, for example, that the Seventh Circuit intended to provide protection for trans individuals.
A few days before the Seventh Circuit handed down its decision, the Second Circuit ruled that a gay man could proceed with a lawsuit against his employer based on an allegation that he was discriminated against because he failed to conform to certain gender stereotypes. Much like the Seventh Circuit decision, this is an objective good. Individuals in the Second Circuit (Connecticut, New York, and Vermont) can now sue when they are harassed—or fired—for being outside the traditional views of masculine and feminine appearance and behavior. However, the Second Circuit went on to explicitly disavow the idea that being discriminated against simply for being LGBTQ could form the basis for a lawsuit:
Simonton and Dawson [two controlling cases in the Second Circuit] merely hold that being gay, lesbian, or bisexual, standing alone, does not constitute nonconformity with a gender stereotype that can give rise to a cognizable gender stereotyping claim.
Read together, all of these opinions show how difficult it is to use the language and attitudes of 53 years ago as the basis for modern-day lawsuits about workplace discrimination. Our cultural understanding of discrimination, sex and gender, and sexual orientation and gender stereotypes has significantly evolved over the last half-century. These cases show that it is going to take a long time to catch up, and it is going to be a really untidy process.