On April 4, 2017, the U.S. Court of Appeals for the Seventh Circuit became the first appellate circuit in the United States to hold that discrimination on the basis of sexual orientation amounts to sex discrimination as prohibited by Title VII of the Civil Rights Act of 1964. In doing so, the Seventh Circuit reversed and remanded its own panel decision as well as the lower court’s decision. The Seventh Circuit is the only federal appellate court that has taken this position. All of the other appellate courts that have addressed this issue have ruled that sexual orientation discrimination is not prohibited by Title VII.
While this conflict among the appellate courts could lead to a review of this issue by the United States Supreme Court at some time, that is not likely to happen based upon the Seventh Circuit’s decision. The employer, Ivy Tech Community College, has decided not to appeal the Seventh Circuit’s decision. The Seventh Circuit sent the case back to the district court so that the case can proceed on the merits of the charge of discrimination.
The Seventh Circuit encompasses the states of Illinois, Indiana and Wisconsin. The Court’s decision is significant in its implications for employer liability under Title VII in these states. This decision broadens the scope of protections under Title VII and exclusively forbids discrimination against employees because of their sexual orientation. Presently, Illinois and Wisconsin prohibit employment discrimination by private employers on the basis of sexual orientation. Indiana does not have a similar law applicable to private employers.
Kimberly Hively began working at Ivy Tech in 2000 as a part-time, adjunct professor at the college’s South Bend, Indiana campus. Between 2009 and 2014, she applied for several full-time positions. She was not selected for any of these positions. In July 2014, her part-time contract was not renewed. Ms. Hively believed that Ivy Tech had discriminated against her because of her sexual orientation, as Ms. Hively is openly lesbian.
Ms. Hively filed a charge with the Equal Employment Opportunity Commission where she eventually received a right to sue letter, and proceeded to file suit in the Northern District of Indiana. The district court granted Ivy Tech’s motion to dismiss her case for failure to state a claim. Ivy Tech argued that sexual orientation is not a protected class under Title VII of the Civil Rights Act of 1964. Ms. Hively then appealed this decision to the Seventh Circuit. In a panel decision on July 28, 2016, the Seventh Circuit affirmed the lower court’s decision. Ms. Hively petitioned the court to rehear the case and on November 30, 2016 the case was reheard by all members of the Seventh Circuit in what is known as an en banc proceeding. On appeal, the main issue for the en banc court was statutory interpretation. Essentially, the question before the court was whether sexual orientation was included in the term “sex” as part of Title VII’s list of prohibited categories of discrimination.
Ms. Hively presented two arguments in favor of her position. The first argument was that the court could use the comparative method to find that she was discriminated against based on her sex. The comparative method looks at sex stereotyping and “traditional” gender norms and asks whether the person would experience the same discrimination in the same situation if they were of a different gender. Here, Ms. Hively argued that had she been male and had romantic involvements with women, she would not have been discriminated against by Ivy Tech. In other words, the discrimination against her was because she is a woman.
The second argument advanced by Ms. Hively is that discrimination based on sexual orientation is sex discrimination under the associational theory. The associational theory dictates that someone who is discriminated against because of a protected characteristic of someone they associate with is also being disadvantaged because of her own traits. Here, because Ms. Hively had a romantic association with a woman and she is a woman, she argued that the discrimination of that association is because of her sex. The en banc court agreed, explaining that if we were to change the sex of one partner in a lesbian relationship, the outcome would be different, which reveals that the discrimination rests on distinctions drawn according to sex.
In accepting these arguments, the court focused on the logic of both prior Supreme Court decisions, as well as what the court termed a “common-sense reality” that it is impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex. The court also notably rejected Ivy Tech’s two technical arguments. Ivy Tech argued that the case should be dismissed on the grounds of waiver and sovereign immunity.
With respect to wavier, Ivy Tech argued that Ms. Hively’s arguments cannot be advanced because the same arguments were not made to the district court. The court rejected this notion explaining that it is able to take a fresh or de novo review of the case, and has the discretion to address issues for the first time on appeal. As to sovereign immunity, Ivy Tech argued that federal courts have concluded that Congress did away with the state’s immunity with respect to intentional discrimination claims under Title VII. The court found no merit in this argument.
In conclusion, the en banc Court held that sexual orientation discrimination is discrimination based on sex. More specifically it held that a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.