For the very first time, a federal appeals court has ruled that discrimination on the basis of sexual orientation is sex discrimination and therefore outlawed by Title VII.
While Title VII does not explicitly identify sexual orientation as a protected classification, courts have been inching toward this conclusion for many years. As far back as 1989, the US Supreme Court ruled that sex stereotyping, e.g. treating a woman adversely because she does not act as a woman is “expected” to act, is prohibited.
Since then, some lower courts have extended this reasoning to find against employers who discriminate against gay people. Those courts contend that in seeking affection from members of the same sex, gay people do not behave the way we would expect people of their gender to behave. Therefore, discriminating against them on that basis is in fact unlawful gender stereotyping under Title VII.
What the Court Said
Against this backdrop, the Seventh Circuit Court of Appeals heard the case of Kimberly Hively, a lesbian woman, who was a part-time adjunct professor for Ivy Tech Community College in Indiana. In 2014, after being rejected repeatedly for full time positions and then having her part time contract discontinued, Hively sued the school under Title VII claiming that had been discriminated against based on her sexual orientation.
The lower court dismissed the claim, observing that Title VII only protects against discrimination based on race, color, religion, sex and national origin. Hively appealed to the Seventh Circuit who framed the issue as follows: “[W]hether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex” and therefore unlawful discrimination under Title VII? In other words, is sexual orientation discrimination inherently sex discrimination?
The Seventh Circuit said yes, that it was a “common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex . . . .”
The Court relied heavily on a hypothetical “in which Hively is a man, but everything else stays the same: in particular, the sex or gender of the partner.” In other words, by assuming Hively were a man in a relationship with a woman (rather than a woman in a relationship with a woman), “the outcome would be different.” According to the Court, this hypothetical, coupled with Supreme Court precedent mentioned above, demonstrated that discriminatory behavior on the basis of sexual orientation does not exist without taking the victim’s sex into account.
This decision is a departure from what other courts are saying – in fact, every other federal circuit court that has looked at this issue, including Minnesota’s Eighth Circuit, has concluded to the contrary and held that Title VII’s protections do not extend to discrimination on the basis of sexual orientation.
That just makes the Seventh Circuit’s decision that much more significant. Now that there is a split among the circuits, (albeit a lopsided one), review and resolution by the US Supreme Court is more likely and perhaps inevitable.
Here in Minnesota, employers may not feel much of an effect because the Minnesota Human Rights Act already prohibits discrimination on the basis of sexual orientation (and gender identity). Thus, even if the Eighth Circuit adopts the Seventh Circuit’s position in the future, life for Minnesota’s employers will not feel much different.
In the states comprising the Seventh Circuit (Wisconsin, Illinois, and Indiana), life is going to be very different indeed, and employers there should immediately begin reevaluating their policies and procedures to ensure a workplace free of sexual orientation discrimination.
As noted above, Minnesotans have been insulated from the debate over Title VII’s impact on sexual orientation discrimination because our state law encompassed that issue years ago.
Outside the Gopher State, however, the issue just escalated in a hurry as a result of the Hively decision. Other circuits that haven’t yet weighed in may now find it easier to side with the Seventh Circuit now that the table has been set for them. In turn, a more even split in the circuits could fast track the issue up to the Supreme Court.
This is going to get very interesting.