Seventh Circuit is the First to Rule Sexual Orientation Discrimination Violates Title VII

Marianne Robbins

On April 3, 2017, a courageous en banc decision by the Seventh Circuit authored by Chief Judge Wood, held in Hively v. Ivy Tech Community College of Indian that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation, reversing the three judge panel and creating a conflict with several other courts of appeal.  The Seventh Circuit is the first federal court of appeals to so hold.

Hively was a part-time adjunct professor who was openly lesbian; she filed a complaint stating her former employer Ivey Tech Community College passed over her for full-time positions and then failed to renew her contract because of her sexual orientation in violation of Title VII. Ivey Tech moved to dismiss Hively’s complaint, citing the many cases which have led that Title VII does not prohibit discrimination based on sexual orientation; a district court dismissed the complaint and a panel of three judges upheld the dismissal. Now in an en banc decision the Seventh Circuit has reversed that decision and ordered the case remanded to the district court for further proceedings.

The en banc decision finds “the logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation   without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases.” First in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) the plaintiff “alleged that her employer was discriminating only against women who behaved in what the employer viewed as too “masculine” a way–no makeup, no jewelry, no fashion sense,”  and  the Supreme Court held that “the practice of gender stereotyping falls within Title VII’s prohibition against sex discrimination.” The Seventh Circuit explained that similarly, “a policy that discriminates on the basis of sexual orientation does not affect every woman, or every man, but it is based on assumptions about the proper behavior for someone of a given sex. The discriminatory behavior does not exist without taking the victim’s biological sex (either as observed at birth or as modified, in the case of transsexuals) into account.”

The Seventh Circuit also relied on Loving v. Virginia, 388 U.S. 1(1967), “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.’” The court explained, “[t]he Court in Loving recognized that equal application of a law that prohibited conduct only between members of different races did not save it. Changing the race of one partner made a difference in determining the legality of the conduct, and so the law rested on ‘distinctions drawn according to race,’ which were unjustifiable and racially discriminatory.”   The court found the same held true where discrimination was based on a person’s sex in relation to that of spouse or partner.  Otherwise the court noted, “it creates a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.”

The Seventh Circuits decision is consistent with the guidelines issued by the federal Equal Employment Opportunity Commission, and its logic is consistent with the growing body of law which recognizes the civil rights, including the right to marry, are guaranteed to all, regardless of sexual orientation. Yet the decision is ground breaking as the first court of appeals decision to recognize discrimination based on sexual orientation is sex discrimination. Given the many court of appeals decisions which have found such claims do not violate Title VII, this decision makes it likely the issue will go to the Supreme Court in the near future.