Title VII Prohibitions Expanded by Seventh Circuit by Jason R. Mau


Title VII Prohibitions Expanded by Seventh Circuit


By Jason R. Mau


            For a couple of years now, the Equal Employment Opportunity Commission (EEOC) has taken the position that the prohibition against sex discrimination in Title VII of the Civil Rights Act also prohibits discrimination based on sexual orientation.  However,  until very recently, courts were reluctant to interpret the provision so broadly.  On April 4, 2017, that reluctance ended as the United States Court of Appeals for the Seventh Circuit, in Hively v. Ivy Tech Community College of Indiana, became the first federal appellate court to conclude that discrimination on the basis of sexual orientation is a form of sex discrimination 

Case before the Seventh Circuit

            This landmark case originated in South Bend, Indiana when an openly lesbian adjunct professor believed that she had been spurned by the Ivy Tech Community College because of her sexual orientation when her part-time contract was not renewed in July 2014.  The college had turned down her applications for full-time positions six times between 2009 and 2014.  She filed a complaint with the EEOC and, after receiving a right-to-sue letter from the agency, filed the action in district court.  The college sought to dismiss her claims, arguing that sexual orientation was not a protected class under Title VII.  The district court agreed and dismissed her case, which she then appealed to the Chicago-based Seventh Circuit. 

            Interestingly, the Court opinion currently gathering nationwide attention was not the Seventh Circuit’s first crack at the Hively case.  Less than one year ago, a Seventh Circuit three judge panel had concluded that it must follow all prior decisions on the issue of whether sexual orientation discrimination was prohibited under Title VII and ruled that employees were given no such protection under the law.  While the panel had affirmed the district court’s dismissal, it made it clear that the reason it did so was because it felt bound to the Circuit’s prior decisions.  In response to the panel’s opinion calling for clear-cut direction from the Supreme Court or new legislation, a majority of all circuit judges in the Seventh Circuit voted to rehear the case en banc (before all eleven of the circuit judges instead of just a three-judge panel), and reexamined recent Supreme Court decisions to reach a contrary conclusion.

The Seventh Circuit’s decision

            The decision was not reached unanimously, as 3 circuit judges only concurred in the result, and 3 others joined in a dissenting opinion.  The majority focused on two recent Supreme Court decisions to support its decision.  Both Price Waterhouse v. Hopkins (which held that gender stereotyping falls within the statutory ban on sex discrimination) and Oncale v. Sundowner Offshore Services, Inc. (which held that Title VII prohibits sexual harassment inflicted on a man by another man) had interpreted Title VII discrimination.  Basing its reasoning on these Supreme Court opinions, the majority concluded:

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 that have endeavored to find and observe that line.

The majority examined two separate approaches presented by the plaintiff, and concluded that analysis under either show that the conduct fell within the statutory ban on sex discrimination.  The first approach was a comparative method, asking whether if all things were held constant,  except her sex, would the treatment have been similar.  The other approach reviewed the line of cases dealing with associational discrimination. 

            The Court’s analysis of the first approach, pushing aside the dissents’ criticisms of the majority’s controlled examples, was that, no, the treatment would not have been similar if the plaintiff had been a male.  The majority concluded that this situation was akin to gender nonconformity (discrimination based on gender stereotyping) that the Supreme Court first deemed unlawful in 1989.  To the majority, a job decision based on the fact that the complainant had a same-sex partner would be a “reaction purely and simply based on sex” and the Title VII prohibition against sex discrimination would apply just as if the job decision had been based on the complainant’s dressing or speaking differently. 

            For the alternative approach, the Court examined prior cases finding discrimination where employment decisions were based on an employee’s relationship with a person of a different race.  The Court explained that this precedent extended to all protected classes, stating that the essence of any similar complaint would be that the plaintiff would not be suffering from an adverse action had the plaintiff’s race, religion, national origin, or sex been different.  Thus, according to the Court, sex discrimination must be found because the adverse action was based on the employee’s sex.  Thus, it was similar to discrimination that has previously been found where a white employee is terminated because of the employer’s disapproval of interracial association.  The underlying reasoning here is that if the employer objects to a female employee’s relationship with a woman but does not object to a male’s relationship with a woman, it reveals a distinction based solely on sex.  Therefore, the Court reversed the district court’s decision dismissing plaintiff’s case and sent it back for further proceedings to progress as a typical sex discrimination case. 

            Interestingly (at least to legal nerds), the concurring opinion expounds a “more straightforward” alternative approach—“judicial interpretive updating” that is bound to prove very controversial.  With such an approach, Judge Posner stated he would prefer if the Court just acknowledged openly that the judges were imposing a new meaning on an old statute not contemplated at the time the statute was enacted.  According to Judge Posner, those adopting the definitions of sex discrimination should not be blamed for what he calls a failure of foresight of Congress to understand how social attitudes would change in the following half century, and that the Court should be allowed to remove the pressure from the legislative branch to update laws so that “statutory obsolescence” can be avoided.

            The dissent acknowledged that many may not be interested in waiting for Congress to act to protect the discrimination that took place in this case, but stated that the judges were not the officials authorized to “amend Title VII by interpretation.”  Whether the focus was placed on the majority’s reading of loosely related Supreme Court cases, or the straightforward concurring opinion embracing broad judicial power, to the dissent it did not matter, as to them the result essentially “circumvent[ed] the legislative process by which the people govern themselves.”  According to the dissenting judges in this “momentous” case, the main failure had been a refusal to interpret Title VII’s language as it would have been understood at the time it was enacted.  The dissent refused to “infuse the text” with a new meaning or updated it to incorporate changing social conditions.

The bottom line

            Now, since this is the first Circuit Court to extend Title VII’s sex discrimination protection to prohibit employment decisions based on sexual orientation, there exists currently a split with other Circuit decisions, with the possibility that the Second Circuit and Eleventh Circuit could rehear, en banc, similar cases very soon.  While the employer in the Hively case has the option to appeal to the Supreme Court to resolve the split, it has released a statement that it does not intend to do so at this time.  Technically this means that the decision only applies to employers within the jurisdiction of the Seventh Circuit—Indiana, Illinois, and Wisconsin.  However, this does not mean that Idaho employers can ignore the issue until the Ninth Circuit (whose decisions apply to Idaho employers) or Supreme Court address a similar case.  Regardless of the range of praises or criticisms that have come with the released opinion, or the strong feelings that come with the underlying issues, the fact is that employers must take note to avoid the risk of litigation.  Now that the EEOC’s position on sex discrimination is supported by at least one Circuit Court, the agency will continue to pursue this line of cases with more confidence regardless of the court. 

            If nothing else, the decision should serve as a good reminder to review your employment policies and practices and determine whether they ensure dynamic protections against workplace discrimination and harassment, as no employer wants to be that test case which asks the Ninth Circuit to similarly interpret and expand sex discrimination under Title VII.  The current legal landscape, including the fact that many municipalities’ ordinances already include the prohibition of discrimination based on sexual orientation, even in Idaho, suggests that now may be the best time to specifically address sexual orientation in your policies and training materials with a legal or HR expert.