In a groundbreaking decision, the Seventh Circuit Court of
Appeals ruled earlier this month that Title VII of the Civil Rights Act
prohibits discrimination on the basis of sexual orientation. The Seventh
Circuit’s decision
in Hively v. Ivy Tech Community College of Indiana is significant
because it is the first decision by a federal appeals court to hold that sexual
orientation discrimination is prohibited under Title VII.
Hively v. Ivy Tech Community College of Indiana
The fundamental question at issue in Hively was
whether Title VII’s prohibition against discrimination “because of sex”
encompasses discrimination on the basis of sexual orientation. As noted
in our previous posts on this topic (here
and here),
federal courts have historically answered “no” to that question and excluded
sexual orientation discrimination from the protections of Title
VII. Indeed, last summer, a three-member panel of the Seventh
Circuit concluded that its prior precedent precluded Hively’s claim for sexual
orientation discrimination under Title VII and affirmed a lower court ruling
dismissing her case. In reaching that conclusion, however, the
three-member panel questioned the continuing vitality of its previous decisions,
particularly given the evolution of the law since Title VII was first passed in
1964, including the Supreme Court’s 2015 decision in Obergefell v. Hodges,
which extended constitutional protections to the right of same-sex couples to
marry. As the three-member panel observed, its prior precedent created a
“paradoxical legal landscape in which a person can be married on Saturday and
then fired on Monday for just that act.”
Given this landscape, the full panel of the Seventh Circuit
voted to rehear argument in Hively and, in its 8-3 decision this month,
reversed its position. The court gave two reasons for its decision.
First, applying a “comparative” method, the court explained that Hively’s
primary allegation was that she would not have been terminated if, instead of
being a woman, she were a man married to a woman,. According to the
court, this allegation described “paradigmatic sex discrimination” because it
alleged differing treatment “because she is a woman.” The court went on
to explain that the line between gender stereotyping claims (which the Supreme
Court recognized in Price Waterhouse v. Hopkins) and claims based on
sexual orientation is not only “gossamer-thin,” it “does not exist at
all.” Second, the court explained that its decision was guided by a line
of cases beginning with the Supreme Court’s 1967 decision in Loving v.
Virginia, which prohibited discrimination against a person because of the
protected characteristic of the one with whom he or she associates.
According to the Seventh Circuit, because a change in the sex of one partner
would change the alleged outcome in this case, that change revealed that the
alleged discrimination rested on impermissible “distinctions drawn according to
sex.”
The Seventh Circuit’s decision provides new critical context
for actions at the Eleventh and Second Circuits, both of which recently held
that their prior decisions barred claims for sexual orientation discrimination
under Title VII. Should one or both of those circuits rehear argument and
affirm their positions, it will create a circuit split that will certainly find
its way to the Supreme Court.
