04-06-2017
For the first time, a federal circuit court has held that Title VII prohibits discrimination on the basis of sexual orientation.
In the matter before the Seventh Circuit Court of Appeals, Kimberly Hively alleged that she was not promoted and ultimately fired because of her sexual orientation. She is openly homosexual. As an adjunct professor for Ivy Tech Community College, she applied for six full-time positions over a five-year period. At the end of those five years, her part-time contract was not renewed. She filed a charge of discrimination with the Equal Employment Opportunity Commission, asserting her belief that she had been discriminated against because of her sexual orientation. Her case was dismissed by the federal district court and by a panel from the Seventh Circuit Court of Appeals. In that decision, the circuit court panel reluctantly upheld the dismissal, noting the difficulty in separating gender non-conformity cases from claims based on sexual orientation. A majority of judges in the Seventh Circuit agreed to rehear the case en banc, meaning before all of the Seventh Circuit judges.
“We must decide … 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.” Determining statutory intent first required a close look at the statute’s language. Although ambiguity in statutory language may lead to a review of legislative history, the court contended that such history was “notoriously malleable.” The court asserted that it could not know what inferences to draw from Congress’ legislative attempts to change the law to explicitly include sexual orientation. It could have been a lack of necessity or that the legislature was satisfied with how it was being interpreted by the courts.
Thus, the circuit court relied on the U.S. Supreme Court’s guidance in Oncale v. Sundowner Offshore Services, Inc. on interpreting Title VII. Based on that case, the Seventh Circuit stated, “the fact that the enacting Congress may not have anticipated a particular application of the law cannot stand in the way of the provisions of the law that are on the books.” Sex discrimination under Title VII has already been expanded to include sex harassment; then expanded again to include same-sex harassment; and once again to include gender stereotyping.
To determine whether the discrimination described by Ms. Hively was sex discrimination, the court looked to whether upon changing only her sex in the situation, would the outcome be the same. Ms. Hively alleged that if she had been a man married to a woman and everything else in her situation remained the same, she would have been promoted and kept her job. To the court, this allegation showed prototypical sex discrimination; “Ivy Tech is disadvantaging her because she is a woman.” In its discussion, the circuit court stated that Ms. Hively represented the ultimate failure to conform to the female stereotype, which is heterosexuality. “Our panel described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all.”[Emphasis added] According to the full court, any decision made by the employer based on the fact that the employee “dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.”
Ms. Hively made a second argument also addressed by the court. She argued that actions taken by her employer based on her sexual orientation constitute sex discrimination under an associational theory. This idea stemmed from the Supreme Court’s case in Loving v. Virginia, which held restricting an individual’s right to marry violated the Equal Protection Clause of the constitution. A person who is discriminated against because of the protected characteristic of the person she associates with is being disadvantaged because of her own traits. The Seventh Circuit asserted that if they changed the sex of one partner in a lesbian relationship, the outcome would be different. Thus, the discrimination was based on sex.
In concluding its decision, the Seventh Circuit Court of Appeals asserted that the reasoning in more recent U.S. Supreme Court cases along with a common-sense look at the law compelled this outcome. “[I]t is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex” and thus the court must overrule prior cases that tried to make that line.