In a historic decision yesterday, the Seventh Circuit determined in Hively v. Ivy Tech Community College (opinion here) that sexual orientation is a protected category under Title VII. In doing so, the Court bucked the legal trend, gave landmark rights to the LGBT community, and for those of us in Wisconsin, opened another forum for plaintiffs. Let’s break it down. DJ!
A Bit of Background
Title VII of the Civil Rights Act prohibits discrimination on the basis of race, color, religion, national origin, and, of most import here, sex. Historically, “sex” did not include sexual orientation, though it has been interpreted to include “sex stereotyping” or “gender nonconformity,” which essentially means discrimination against someone based on their sex because their conduct seemingly did not conform to their sex (examples as stated by Judge Posner: “effeminate men” or “mannish women”).
For the last two years, the EEOC has been efforting to include sexual orientation within “sex” under Title VII – a position it itself adopted – but was having no luck. In fact, every other federal appeals court that has ruled on the issue disagreed with the EEOC. For example, just within the past couple of months two circuits – the Eleventh Circuit in Evans v. Georgia Regional Hospital (opinion here) and Second Circuit in Christiansen v. Omnicom Group, Inc. (opinion here) – found that Title VII’s definition of “sex” did not include sexual orientation.
The Court’s Decision
Initially, the Seventh Circuit agreed with those other circuits; however, Hively petitioned for and the Court allowed rehearing en banc, meaning that the parties re-argued the case before the entire Court, rather than a three-judge panel. It’s generally not a good sign for the “prevailing” party when that happens and here it was no different.
In a departure from the three-judge panel’s initial determination and the determinations reached by every other circuit, the Seventh Circuit concluded “that discrimination on the basis of sexual orientation is a form of sex discrimination.” In reaching this conclusion, the Court determined there is no difference between “gender nonconformity” claims and discrimination based on sexual orientation. Specifically, the Court stated:
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. Hively’s claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a women (or in some cases, for a man).
The Court further elaborated on how sexual orientation discrimination bears similarities to and falls within associational discrimination:
It is now accepted that a person who is discriminated against because of the protected characteristic of one with whom she associates is actually being disadvantaged because of her own traits. This line of cases began with Loving, in which the Supreme Court held that ‘restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.
Guidance time. If the history of all of this makes your eyes gloss over, there is one thing you absolutely need to take away from the Court’s decision and that’s how it now defines sex discrimination:
Any discomfort, disapproval, or 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. That means it falls within Title VII’s prohibition against sex discrimination, if it affects employment in one of the specified ways.
Now that was the majority’s view and for those who live or work in Wisconsin, Indiana, and Illinois, that’s now the law. But it’s worth noting that three judge dissented and it was for the same reason that multiple other circuits have refused to include sexual orientation in “sex”: it’s a decision for Congress, not for the courts. According to those judges, “We are not authorized to infuse the text with a new or unconventional meaning or to update it to respond to changed social, economic, or political conditions.” In short: courts aren’t supposed to legislate from the bench. Sounds like something that would resonate well with conservatives on the Supreme Court.
So Now What?
Well, for starters, in Wisconsin your workplace and work-related decisions should remain unchanged, unless of course you missed the boat on the fact that sexual orientation is a protected category under the Wisconsin Fair Employment Act. If that’s the case, see me in my office immediately. Under the Act, sexual orientation is defined as “having a preference for heterosexuality, homosexuality or bisexuality, having a history of such a preference or being identified with such a preference.” In Wisconsin it’s therefore been unlawful for an entity to take an adverse action against an individual because of his or her sexual orientation. So, while this is nothing new, it does mean that plaintiffs can now bring their sexual orientation claims in (the always more expensive) federal court with the full blessing of the Seventh Circuit. So, these claims can now be much more costly to defend against – something to consider.
It also remains a possibility that Ivy Tech appeals to the Supreme Court to solve what is now a circuit split on the issue. Whether it does so or not has yet to be seen, but it likely would not be a solid PR move on its part.
It’s also possible that in reaction to the Seventh Circuit’s decision, the Eleventh and Second Circuits’ recent decisions noted above are re-heard en banc, as was the case in Hively and, if so, whether they go along with the majority or the dissent. Either way, it will be interesting to see whether other circuits follow in line with Hively (which is pretty likely) or continue denying coverage to sexual orientation.
Finally, Congress could foreclose on any of these remaining questions by amending Title VII. At present, no legislation is pending that would do so, but it’s always possible.