Thursday, July 28, 2016
The Seventh Circuit issued a decision today in Hively v. Ivy Tech Community College, relying on prior circuit precedent to hold that Title VII does not forbid discrimination on the basis of sexual orientation. The opinion was written by Judge Rovner and joined by Judge Bauer. Judge Ripple concurred in the judgment and only that part of the opinion referring to the prior circuit precedent.
The opinion is the first circuit court opinion to be issued on the subject since the EEOC's decision in Baldwin v. Foxx last year, holding that sexual orientation discrimination is per se sex discrimination because: 1. but for the sex of the person, the romantic partner's sex would not be objectionable; 2. penalizing a person for the sex of their romantic partners is associational sex discrimination; and 3. requiring men to date or marry women and women to date or marry men is a core gender stereotype. In Baldwin, the EEOC had taken many circuit courts to task, pointing particularly at the Seventh Circuit for parroting its prior precedents without considering their foundation.
The line of precedent in the Seventh Circuit is particularly problematic. It started with the decision in Ulane v. Eastern Airlines that Title VII did not protect a pilot who was fired for undergoing gender transition because Title VII did not prohibit discrimination on the basis of "transsexualism." This was was one of the first decisions on an LGBTQ issue under Title VII. The decision in Ulane has been pretty thoroughly undermined by the Supreme Court's decision in Price Waterhouse v. Hopkins, which recognized that gender stereotyping can be sex discrimination. In recent cases, most courts have considered Price Waterhouse to have essentially overruled Ulane and have held that gender identity discrimination is sex discrimination.
Relying on a line of precedent with Ulane at its base aside, Judge Rovner's opinion is remarkable for the thoughtfulness of what follows a description of the circuit's precedent. She discusses Baldwin and quite thoroughly analyzes the cases relevant to whether there is some distinction between sex, sex stereotyping, and sexual orientation. Over and over, she acknowledges the lack of rational distinctions and the difficulties courts have had drawing lines to justify treating sexual orientation as something different from sex. She also lays out the paradox that the more stereotypically gay or lesbian the plaintiff, the more likely the case will be indistinguishable from a sex stereotyping case, and thus cognizable. Judge Rovner highlights the fact that associational discrimination claims have long been cognizable in race cases as another paradox or inconsistency in the precedent. Finally, she discusses the Supreme Court decisions on sexual orientation and the equal protection principles behind protection of LGBTQ individuals.
In the end, though, Judge Rovner says she is bound by prior circuit precedent for two main reasons. Congress failed to amend Title VII to include sexual orientation in the definition of sex despite a number of legislative efforts between 1975 and 1982, nor did it pass the Employment Non-Discrimination Act in any of its prior incarnations between 1994 and 2013. And the Supreme Court has not yet held that sexual orientation discrimination is a violation of Title VII.
Moving forward, she points out that many district courts --"laboratories on which the Supreme Court relies to work through cutting‐edge legal problems" -- currently considering the issue are agreeing with the EEOC, suggesting, perhaps, that the Court act sooner rather than later. She also suggests that within the Seventh Circuit, some sexual orientation discrimination cases will be cognizable under Title VII because the context of the discrimination will be so intertwined with sex stereotyping that the issues cannot be untangled. But where stereotypes about the person are clearly linked with sexual orientation rather than sex, there will be no cognizable claim. In her words:
Harassment may be based on prejudicial or stereotypical ideas about particular aspects of the gay and lesbian “lifestyle,” including ideas about promiscuity, religious beliefs, spending habits, child‐rearing, sexual practices, or politics. Although it seems likely that most of the causes of discrimination based on sexual orientation ultimately stem from employers’ and co‐workers’ discomfort with a lesbian woman’s or a gay man’s failure to abide by gender norms, we cannot say that it must be so in all cases.
The opinion is an interesting mix of roadmap to finding that sexual orientation is part of sex for purposes of Title VII and hand-wringing that Congress and the Supreme Court haven't made that clear yet. Maybe a circuit split in the next year or so will set the stage. I'm not as confident that the membership of Congress will change in this election to allow for any movement on the Equality Act, but that is another possibility.