Seventh Circuit Holds that Sex Includes Sexual Orientation

As I told my employment discrimination students last Thursday when we talked about sexual orientation and gender identity issues under Title VII, things are moving very fast in the courts on these issues. The Seventh Circuit, en banc, ruled today in Hively v. Ivy Tech, that sexual orientation discrimination was sex discrimination under Title VII. There were two concurrences, one by Judge Flaum and the other by Judge Posner, and a dissent by Judge Sykes.

I'm still digesting the opinion, but the court relied primarily on the two grounds advanced by the plaintiff--but for her sex, her affectional preferences would not have resulted in an adverse employment action, and that adverse employment actions taken because of the protected class of those the employee associates with or is romantically involved with, here sex, violate Title VII. The latter kind of associational claim has long been recognized for race. The court additionally drew support from the observation of the Supreme Court in Oncale that statutes often go beyond the principal evil they were primarily intended to address and the scenario in Price Waterhouse v. Hopkins, where but for the plaintiff's sex, her behavior would have been applauded. There is more to the analysis, including discussion of Romer v. Evans and the same sex marriage cases.

This en banc decision follows a panel decision issued last summer in which the court had agreed with much of the same reasoning but rejected Hively's claim because the panel felt bound by prior precedent to do so. The Eleventh Circuit recently issued a similar decision in Evans v. Georgia Reg'l Hosp., although it did not analyze the issue in the same depth as the Seventh Circuit had. And a panel at the Second Circuit, in Christiansen v. Omnicom Group, Inc., just allowed a gay plaintiff's claim to proceed on a gender stereotyping theory even though it could not reconsider the court’s earlier decision holding that sexual orientation discrimination claims were not cognizable under Title VII. In that case, as Joe noted when the decision came out, Judge Katzmann wrote a concurrence urging the Circuit to find that sexual orientation discrimination violated Title VII.

This marks the first Circuit Court to agree with at least some of the EEOC's arguments on this issue. And given the speed with which these cases are being decided, it seems fairly certain to be headed to the Supreme Court.

MM