shaw bransford & roth case law update

Discrimination on the Basis of Sexual Orientation Covered under Sex Discrimination for the Purposes of Title VII

Last week, the U.S. Court of Appeals the for the Seventh Circuit held that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964.

Kimberly Hively is an open lesbian. She served as a part-time adjunct professor at Ivy Tech Community College’s South Bend campus from 2000 to 2014, when her part-time contract was not renewed. From 2009 to 2014, Hively applied for six full-time positions at Ivy Tech without success.

Because Hively believed that Ivy Tech denied her a full-time position on the basis of her sexual orientation, she filed a complaint with the Equal Employment Opportunity Commission (EEOC). Hively received a right-to-sue letter from the EEOC and filed her claim in district court.

Ivy Tech responded to Hively’s action with a motion to dismiss for failure to state a claim in which relief could be granted. Ivy Tech contended that sexual orientation is not a protected class under Title VII. The district court granted Ivy Tech’s motion and dismissed Hively’s claim with prejudice.

Hively filed an appeal with the U.S. Court of Appeals for the Seventh Circuit. A panel of the court of appeals affirmed the district court’s dismissal. The panel noted that discrimination based on sexual orientation is distinct from sex discrimination.

A majority of the court’s judges in regular active service voted to rehear Hively’s case en banc. In front of the full court of appeals, the question at issue was whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex.  

Ivy Tech contended that because Congress has frequently considered amending Title VII to add the words “sexual orientation” to the list of prohibited characteristics, and has never done so, it never intended discrimination on the basis of sexual orientation to be a form of sex discrimination. Many of the court’s sister circuits have also made this point. Still, the court of appeals stated that it is too difficult to draw a reliable inference from “truncated legislative initiatives.”

The court found that its interpretive task is guided by the Supreme Court’s approach in the closely related case of Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), where the Court held that “statutory prohibitions 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.” Thus, the fact that the enacting Congress did not anticipate a particular application of law cannot stand in the way of the provisions in the books.

Hively argued that the court consider two different approaches in support of her contention that sex discrimination includes discrimination on the basis of sexual orientation – a comparative method and an associational theory. Under the comparative method, Hively alleged that if she had been a man married to a woman, with everything else constant, Ivy Tech would not have refused to promote her and would not have fired her. According to the court, “[t]his describes paradigmatic sex discrimination.” Under these circumstances, Ivy Tech is disadvantaging Hively because she is a woman. Further, through the lens of the gender non-conformity line of cases that stemmed from the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the court found that Hively’s claim is no different from those claims brought by women who were rejected for jobs where employers were policing the boundaries of what behaviors they found acceptable for women.

As an alternative to the comparative method, Hively proposed that the court rely on the Loving v. Virginia, 388 U.S. 1 (1967), line of cases to protect her right to associate intimately with a person of the same sex. In Loving, the Supreme Court held that “restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.” Though Loving and its progeny all deal with racial associations, “as opposed to those based on color, national origin, religion, or sex, is of no moment,” the court stated that the text of the statute draws no distinction among the different varieties of discrimination it addresses. No matter which category is involved, the essence of the claim is that the plaintiff would not have suffered the adverse action had his or her sex, race, color, national origin, or religion been different.

The court noted that “[i]t would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation’” and that the effort to do so has led to “confusing and contradictory” results.” The court acknowledged that authority to the contrary exists and almost all of its sister circuits have determined that Congress did not intend sex discrimination to apply to discrimination on the basis of sexual orientation. Still, the court of appeals emphasized that it is tasked to consider what the correct rule of law is in light of the Supreme Court’s authoritative interpretations, not what someone thought it meant.

Thus, the court held that a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forward a case of sex discrimination for the purposes of Title VII. As such, it was wrong to dismiss Hively’s complaint for failure to state a claim.

The court of appeals reversed the judgment of the district court and remanded the case for further proceedings.

Read the full case: Hively v. Ivy Tech Cmty. Coll. 

 


This case law update was written by Michael J. Sgarlat, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

Tags: Title VII, sexual orientation

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