Title VII of the Civil Rights Act of 1964 makes it unlawful for employers to discriminate on the basis of a person’s race, color, religion, national origin, or sex. For many years, courts around the country ruled that sex discrimination did not include sexual-orientation discrimination. The Seventh Circuit Court of Appeals, based in Chicago, Illinois, is now the first federal appellate court to hold otherwise.
The plaintiff, Kimberly Hively, is openly-lesbian and a former part-time adjunct professor at Ivy Tech Community College in South Bend, Indiana. Between 2009 and 2014, she unsuccessfully applied for at least six full-time positions. In July 2014, her part-time contract was not renewed. She first filed a charge of discrimination with the EEOC and later filed suit in federal court, claiming that she was denied full-time employment because of her sexual orientation.
The district court dismissed her claims, finding that that Title VII did not protect against sexual orientation discrimination. Last year, the Seventh Circuit, in a 2-1 panel decision, affirmed the district court’s dismissal.
The Seventh Circuit, however, agreed to rehear the case en banc, and yesterday reversed years of precedent and the district court’s dismissal, allowing Hively to proceed with her claims.
First, the Court found merit in Hively’s comparative argument: all other things being equal and changing only Hively’s sex, would she been treated the same way if she were a man? That is, would she have been denied full-time employment if she were a man dating or married to a woman? The answer: no. “This describes,” the Court stated, “paradigmatic sex discrimination.”
Second, the Court addressed Hively’s associational argument: if discrimination on the basis of the race of a person with whom an employee associates constitutes race discrimination, why is discrimination on the basis of the sex of a person with whom an employee maintains a sexual relationship not sex discrimination? The answer: it is.
In reaching this answer, the Court looked at various developments in the law governing Title VII over the last several decades. For instance, Title VII’s prohibition against sex discrimination has been held to include a prohibition of sexual harassment, same-sex harassment, and even gender stereotyping. According to the Court, Hively’s case “represents the ultimate case of failure to conform to the female stereotype: she is not heterosexual.”
The Court also looked at various Supreme Court decisions resolving the rights of same-sex couples. In 2003, the Supreme Court found unconstitutional a Texas statute that criminalized consensual homosexual intimacy; in 2013, it found unconstitutional the part of the Defense of Marriage Act that excluded a same-sex partner from the definition of a “spouse” in other federal statutes; and in 2015, in held that the Equal Protection and Due Process Clauses of the 14th Amendment protect the right of same-sex couples to marry.
How can these cases possibly be reconciled with the counterargument that Title VII historically prohibited sex discrimination but not sexual orientation discrimination? The answer: they can’t.
In March of this year, the Eleventh Circuit held that Title VII does not prohibit discrimination on the basis of sexual orientation. Our coverage of that case is here. With the circuit split now created by the Seventh Circuit’s decision, the issue will likely make its way to the Supreme Court.