Because of Sex(ual Orientation)

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees and prospective employees “because of . . . sex.”

In the Supreme Court’s view, this language “strike[s] at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Therefore, since its enactment by President Lyndon Johnson and the 88th Congress during the heyday of the Civil Rights Movement, Title VII has come to proscribe “far more than the simple decision of an employer not to hire a woman for Job A” simply because she is a woman — the paradigm case of sex discrimination. Today, Title VII also protects workers from discrimination based on non-conformity with gender stereotypes, as well as protects workers from sexual harassment in the workplace, including same-sex sexual harassment. To the Court, it is no concern that prohibition of certain employer conduct “was assuredly not the principal evil Congress was concerned with when it enacted Title VII.” As Justice Scalia observed for a unanimous Court, “statutory prohibitions [like Title VII] often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

Applying these principles, an en banc U.S. Court of Appeals for the Seventh Circuit recently made history by becoming the first federal court of appeals to hold that employer discrimination based on an employee’s sexual orientation is a form of sex discrimination prohibited by Title VII.

The Conventional Understanding: Reading the “Sex” Out of “Sexual Orientation”

In 2000, Kimberly Hively — who is “openly lesbian” — began teaching part-time at the South Bend, Indiana, campus of Ivy Tech Community College. After nearly a decade as an adjunct at the school, Hively applied for a full-time position, which she did not receive. She then applied again — and again, and again. Between 2009 and 2014, Hively applied for at least half a dozen full-time openings, but to no avail: Ivy Tech was not interested in her services. Hively’s relationship with Ivy Tech then ended in 2014 when the school did not renew her adjunct contract.

Believing that Ivy Tech was discriminating against her because she is a lesbian, Hively first filed a charge against the school with the Equal Employment Opportunity Commission and then sued the school in federal district court. Bound by circuit precedent holding that Title VII’s ban on sex-based discrimination does not protect employees from discrimination due to sexual orientation, the district court dismissed Hiverly’s case.

On appeal, a panel of the Seventh Circuit likewise stood by its precedent and affirmed, denying that Hively possessed a cognizable claim under Title VII. In the process, however, the panel observed that “[i]t seems illogical to entertain gender non-conformity claims under Title VII where the non-conformity involves style of dress or manner of speaking, but not when the gender non-conformity involves the sine qua non of gender stereotypes — with whom a person engages in sexual relationships.” Moreover, the panel discerned “no rational reason to entertain sex discrimination claims for those who defy gender norms by looking or acting stereotypically gay or lesbian (even if they are not), but not for those who are openly gay but otherwise comply with gender norms.”

However, the panel’s objections with the outcome stretched beyond logical fallacies to simple moral discomfort.  To the panel, “[i]t seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry.”

The Seventh Circuit Changes Course, But Does Not Change Title VII

Following the panel’s critical evaluation of circuit precedent, the Seventh Circuit took the rare step of hearing Hively’s case en banc, and subsequently voted eight-to-three to overturn its circuit precedent and to hold that Title VII’s prohibition against sex discrimination does in fact include discrimination based on sexual orientation.  Writing for the bipartisan supermajority of judges, Chief Judge Wood began her analysis by noting what the relevant question was not: “whether this court can, or should, ‘amend’ Title VII to add a new protected category.”  “Obviously,” Chief Judge Wood observed, “that lies beyond our power.”  Rather, the relevant questions were “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.”

Characterizing the inquiry as “a pure question of statutory interpretation,” Chief Judge Wood concluded that two independent and well-accepted modes of Title VII analysis each “end up in the same place” when applied to Hively’s case: sex discrimination. The first mode was comparator analysis, whereby the court considered the counterfactual in which “Hively is a man, but everything else stays the same,” including the partner’s sex or gender. Viewed through this analytical frame, Chief Judge Wood concluded that Hively described “paradigmatic sex discrimination”: accepting Hively’s allegations as true, if Hively “had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same,” then Ivy Tech would not have taken adverse action against her. Therefore, her situation was of a piece with well-established tenets of Title VII jurisprudence.

In the process of conducting her comparator analysis, Chief Judge Wood also considered Hively’s case “through the lens of the gender non-conformity line of cases.” In her view, Hively’s homosexuality “represents the ultimate case of failure to conform to the female stereotype,” namely, sexual attraction to men — an insight that, according to Chief Judge Wood, dispelled any alleged distinction between a Title VII claim based on gender non-conformity and one based on sexual orientation. In other words, Hively’s claim was indistinguishable from claims by women who are “rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing”: where employers are “policing the boundaries of what jobs or behaviors they found acceptable for a woman” — how she dresses, how she speaks, who she dates or marries — they are violating Title VII’s prohibition against sex discrimination.

Chief Judge Wood’s second mode of analysis followed the associational theory of Title VII, in which “a person is discriminated against because of the protected characteristic of one with whom she associates is actually being disadvantaged because of her own traits.” Drawing analogies to constitutional and Title VII cases involving discrimination against individuals in interracial relationships, and noting that Title VII provides the same level of protection to all of its protected categories, Chief Judge Wood concluded that the associational theory — an approach that had been used mostly in the race discrimination context — likewise supported Hively’s claim of sex discrimination: where changing the sex of one partner in a lesbian relationship changes the outcome, then the resulting change in outcome “rests on distinctions drawn according to sex.”

Statutory Amendment, Not Statutory Interpretation: Judge Sykes Dissents

Joined by two other judges, Judge Sykes dissented from the en banc court, accusing her “unelected” colleagues of “smuggl[ing] in [a] statutory amendment under cover of an aggressive reading of loosely related Supreme Court precedents.” In Judge Sykes’s view, Chief Judge Wood and the majority defied the “traditional first principle of statutory interpretation”: to interpret a statute “as a reasonable person would have understood it at the time of enactment.” In other words, judges “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” — which, Judge Sykes contended, was exactly what the majority in Hively did with the term “sex” in Title VII.

To Judge Sykes, Title VII’s reference to “sex” — defined by its “common, ordinary usage in 1964,” when Title VII became law — simply “means biologically male or female”; the term “does not fairly include the concept of ‘sexual orientation.’” Disputing Chief Judge Wood’s contention that discrimination based on sexual orientation is necessarily discrimination based on sex, Judge Sykes argued that “[s]exism (misandry and misogyny) and homophobia are separate kinds of prejudice that classify people in distinct ways based on different immutable characteristics.” To her, where an employer refuses to hire homosexuals, the employer is “not excluding gay men because they are men,” but instead because they are gay. In short, the employer’s “discriminatory motivation is independent of and unrelated to the applicant’s sex.”  Title VII’s prohibition against sex discrimination therefore does not apply.

All Roads Lead to the Supreme Court?

To Chief Judge Wood, “[i]t would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’” Yet that is precisely how circuits to have considered the issue have uniformly understood it — until Hively.  In other words, the question of whether Title VII’s prohibition against sex discrimination encompasses discrimination based on sex discrimination is far from an open-and-shut case, as the near-universal agreement of the circuit courts and Judge Sykes’s dissent in Hively well illustrate. The Seventh Circuit’s departure from its sister circuits is made all the more evident by a recent panel decision out of the U.S. Court of Appeals for the Eleventh Circuit that followed its own relevant circuit precedent to conclude that discrimination based on sexual orientation is not prohibited by Title VII. Given this circuit split concerning the proper interpretation of Title VII, the Supreme Court seems likely step in to resolve the issue, perhaps as soon as the October 2017 Term.

And when the Justices step into this fray, one hopes that they will vigorously uphold Title VII’s promise to “strike at the entire spectrum” of sex discrimination — and protect workers such as Kimberly Hively from the danger that their employers will penalize them not based on how they work, but rather based on who they love.