Can an employee sue her employer for sexual orientation discrimination? A recent decision by the the entire bench of the 7th Circuit said that Title VII’s prohibition against sex discrimination necessarily included sexual orientation discrimination claims.

In this blog post, I will review the Seventh Circuit en banc decision in Hively v. Ivy Tech Community College of Indiana. I will explain how the court found that Title VII should be read to prohibit sexual orientation discrimination. I will also explain how this decision pairs with another recent opinion to create a conflict that could result in consideration by the Supreme Court.

Sexual Orientation Discrimination at Ivy Tech

Kimberly Hively was an open lesbian and a part-time adjunct professor at Ivy Tech Community College’s South Bend campus. Her employers observed her kissing her then-girlfriend in the parking lot of the school. Since that time, Hively had applied for six full-time teaching positions between 2009 and 2014. But on top of being passed over all six times, in July 2014 her existing contract was not renewed. She filed a complaint with the Equal Employment Opportunity Commission, claiming that she had been the target of sexual orientation discrimination.

The EEOC issued a right-to-sue letter. So Hively sued Ivy Tech in federal district court (without a lawyer). The trial court, and later a 3-judge panel of the 7th Circuit Court of Appeals, ruled that there is no cause of action for sexual orientation discrimination based on existing case law in that court. Hively’s appellate attorneys then requested and “en banc” review, asking all the Circuit Court judges to weigh in on the issue.

Why En Banc Decisions are Different

To understand importance the en banc review, you first need an overview of the issue of “precedent”. When making legal decisions, judges at the trial court and appellate court level are required to apply existing case law. That means federal trial and appeals court judges are “bound” by U.S. Supreme Court cases and earlier decisions within their own circuit. But an en banc decision can sometimes overturn existing circuit court precedent. The 7th Circuit Court decided to hear review Hively “[i]n light of the importance of the issue, and recognizing the power of the full court to overrule earlier decisions and bring our law into conformity with the Supreme Court’s teachings”.

Sexual Orientation Discrimination As Necessarily Sex Discrimination

The 7th Circuit entertained two related arguments in favor of sexual orientation discrimination. The first asked if the plaintiff’s sex had influenced her employer’s decision. That meant asking, “holding all other things constant and changing only her sex, [would she] have been treated the same way?”

The court emphasized the importance of holding all things constant except the plaintiff’s sex. It compared Hively’s situation to a male dating a female partner and working in the same position. This was a point of contention between the majority of judges and the dissent. The dissenting judges would have compared Hively to a homosexual man in the same situation — in other words, they would have changed both partners’ sex, instead of just her own. The court found that this approach changed too much. It also obscured the issue of gender non-conformity, which is an established form of sex discrimination. The court said:

Viewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.

It found that there is no distinction between a gender nonconformity claim and one based on sexual orientation.

Any discomfort, disapproval, or job decision based on the fact that the complainant — woman or man — dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.

Sexual Association Discrimination Compared to Interracial Marriage

The second argument in favor of Hively’s sexual orientation discrimination claim drew an analogy to the Supreme Court’s decision regarding interracial marriage in Loving v. Virginia, 388 U.S. 1 (1967). That case, and several later court of appeals opinions, held that employment decisions made because of a protected characteristic of a person’s associate is actually discrimination based on his or her own traits. While the trait in question in those cases was race, the court said the same reasoning would apply to any other form of discrimination including national origin, color, religion, or sex of the person’s associate.

Supreme Court Decisions in Favor of Same-Sex Couples

The court found support for its decision in a number of existing Supreme Court decisions in favor of homosexual individuals and couples:

• Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), determined gender stereotyping was illegal sex discrimination.
• Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), determined that sex discrimination can occur regardless of the sex of the harasser or the victim.
• Romer v. Evans, 517 U.S. 620 (1996), struck down a state constitutional amendment forbidding laws that protect “homosexual, lesbian, or bisexual” persons.
• Lawrence v. Texas, 539 U.S. 558 (2003), struck down a law criminalizing homosexual intimacy between consenting adults.
• United States v. Windsor, 133 S.Ct. 2675 (2013), struck down the federal Defense of Marriage Act excluding same-sex spouses based on due process and equal protection principles.
• Obergefell v. Hodges, 135 S.Ct. 2584 (2015), protecting the right of same-sex couples to marry.

The current state of employment discrimination law creates “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.” The court said “[i]t would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.'”

Two Decisions Set Up Supreme Court Conflict

The Hively decision is directly contrary to the recent 11th Circuit decision in Evans vs. Georgia Regional Hospital. There, a 3-judge panel said that a lesbian employee may be able to raise a sex discrimination claim based on her behavior under a gender stereotype theory. However, it refused to recognize sexual orientation discrimination based solely on her status as a homosexual. The two decisions create a direct conflict. Discrimination based on a person’s same-sex relationship is legal in one part of the country, but illegal in another. These kinds of conflicts are ripe for resolution by the Supreme Court. If either Evans or Hively is appealed, the Supreme Court could soon review the rights of LGBT employees nationwide.

At Eisenberg & Baum, LLP, our employment discrimination attorneys stay up to date with current sexual orientation discrimination case law. We can help you understand your rights at work, and what your remedies might be if you have faced employment discrimination based on who you love. Contact Eisenberg & Baum, LLP, today for a free consultation.