Judge Richard Posner’s sudden retirement from the 7th Circuit Court of Appeals in September took many lawyers and commentators by surprise. But Posner’s legacy on employment discrimination cases promises to live on for some time to come.

In this blog post, I will review the impact of Judge Richard Posner of the United States Circuit Court of Appeals, Seventh Circuit. I will discuss how his opinions seemed to shift in favor of employees over time, culminating in one of the most controversial employment discrimination cases in recent memory: Hively v. Ivy Tech Community College.

During his 35 years on the federal bench, Judge Posner was known as a prolific writer, and a pragmatic decision maker. Over time, his opinions on employment discrimination cases have shaped the law and the practice, leaving quite the legacy.

Judge Posner on Age Employment Discrimination Cases

Judge Posner didn’t start out as a favorite among employment discrimination attorneys. Many of his early opinions framed employment law in terms of economics. That did not always fair well for the workers, particularly in the area of age discrimination. In his 1995 book Aging and Old Age, Posner questioned the need for a federal age discrimination law at all saying:

The people who make employment policies for corporate and other employers and most of those who carry out those policies about hiring or firing specific workers are at least 40 years old and often much older. … Employers—who have a direct financial stake in correctly evaluating the abilities of their employees and who for the most part are not young themselves—are unlikely to harbor either serious misconceptions about the vocational capacities of the old (so it is odd that employment should be the main area in which age discrimination is forbidden) or a generalized antipathy toward old people.

He went on to compare the situation to a black-majority nation passing laws to protect black people from race discrimination. The position was controversial as it was bold. However, over the years Posner’s legacy on employment discrimination cases began to soften, and the once staunch conservative began to take a more libertarian perspective that benefited American workers.

Posner’s Legacy on Employment Discrimination and Sexual Orientation

Judge Posner was exceedingly prolific. In 35 years he penned over 3,300 opinions. But perhaps one of his most noteworthy opinions was also one of his most recent: a concurrence in Hively v. Ivy Tech Community College. In Hively, a part-time adjunct professor sued her employer, Ivy Tech Community College of Indiana for sexual discrimination. She said she had been passed over for full-time positions between 2009 and 2014 because her employers had learned she was a lesbian. In an en banc decision by the entire 7th Circuit bench, Professor Hively’s claim of sexual orientation discrimination won out.

Posner joined with the majority decision, ruling that Title VII’s prohibition against discrimination based on sex included the sex of a person’s intimate partner. He also went on to pen a concurring decision saying that time and circumstances had changed the way the legal community understood the word “sex” in the Civil Rights Act.

“Sex” in 1964 meant gender, not sexual orientation. What the framers and ratifiers understandably didn’t understand was how attitudes toward homosexuals would change in the following half century. … We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963–1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught.

The opinion was true to Posner’s legacy on employment discrimination, placing pragmatic concerns above the letter of the law. It also recognized a key distinction in modern legal discourse: that sex means far more than mere biology.

Posner and the Pro Se Litigant

When he announced his retirement on September 1, 2017, Posner told the Chicago Daily Law Bulletin that his abrupt departure was due to “difficulty” he was having with the other judges and their treatment of pro se litigants (people who represent themselves in court). He believes these people “deserve a better shake”.

According to the Bulletin, about 55-60% of the 7th Circuit’s appeals are filed by people representing themselves without a lawyer. That included Professor Hively. However, most of these cases were decided without a hearing, on the written materials alone. Posner felt this was unfair. Now that he has retired, he intends to continue to teach and publish books, with a focus on social justice reform.

Posner’s legacy on employment discrimination is certain to be a lasting one. From his numerous opinions, to his outspoken advocacy for the individuals who appeared before him in court, he has become a standard for the judiciary over the last three decades. His wit, and his wisdom will be missed.

At Eisenberg & Baum, LLP, our experienced discrimination attorneys are ready to help with anything from age discrimination to sexual orientation cases. We can help you identify options, negotiate solutions, and plead your case before the EEOC or a federal judge. Contact us today to schedule a consultation and review your case.