I’m unsure whether to call the Seventh Circuit’s opinion holding that Title VII protects against Sexual Orientation discrimination inevitable. What the opinion represents is legislation from the bench, which is not as uncommon as the general public may believe. First, let us discuss the facts of Hively v. Ivy Tech Community College of Indiana (7th Cir. 2017). Kimberly Hively was an adjunct math professor at Ivy Tech for many years. She applied for multiple full time positions without being hired. After the 6th time of not being promoted, she filed a discrimination claim with the EEOC arguing that she was not promoted due to the fact that she was a Lesbian. The EEOC dismissed the claim and she filed suit in Northern District of Indiana acting in a pro se capacity (she did not have attorney). Ivy Tech filed a motion to dismiss arguing that protection from sexual orientation discrimination was not recognized under Title VII, a motion which was granted by the District Court. She then sought the assistance of the Lambda Legal Defense Fund and they prosecuted her appeal in the 7th Circuit. The Three judge panel upheld the District Court’s ruling. Hively, through Lambda, appealed to the en banc 7th Circuit Court of Appeals. The en banc court (this means all the justices on the 7th Circuit) decided to hear her petition for review of the three judge panel’s ruling. The En Banc court reversed the district court’s dismissal and concluded that sexual orientation was protected from discrimination under Title VII.
The En Banc court came to this conclusion based upon two arguments made by Lambda. First, Lambda used recent case law which interpreted the prohibition against sex discrimination to apply to cases where employees were harassed because they did not conform to gender norms (i.e. the employee was harassed because he was not manly; the Oncale Supreme Court case). Lambda and the court determined that this line of reasoning allows for sexual orientation to be protected because the Lesbian employee is not conforming to the expected gender norm of being a heterosexual. In the second basis for its reversal of the dismissal, the court referred back to the 1967 case of Loving v. Virginia, where the Supreme Court held that marriage restrictions based race violated equal protection, and found that tenets of the prohibition against association discrimination (discriminating because someone associates with a certain race, is married to someone of a certain race, etc) would apply to protect sexual orientation. The court’s reasoning being that when a Lesbian dates another woman and is terminated as a result, this is sex discrimination because she is being terminated because she is associating with another woman.
Putting aside religion, morals and politics and examining this case from an intellectual point of view, the 7th Circuit stretched legal reasoning to come to a result that it feels is in conformity with popular culture. Remember, Title VII prohibits discrimination based upon a person’s “race, color, religion, sex or national origin…” The dissent’s point that in the English language the term “sex” does not mean “sexual orientation” is a powerful statutory construction argument that would normally hold the day and had held the day until yesterday’s opinion. But, the majority’s statement that it seems wrong for the Supreme Court to legalize gay marriage, which would allow a gay couple to marry, but that same couple could be terminated the next day, is tough to argue with from a pure common sense perspective except to say that the legislature has had opportunities over the last decade (and several bills have been proposed) that would have given protection based upon sexual orientation and chose not to provide that protection. If our government is to operate under the guise of separation of powers, what the 7th Circuit did, in my opinion, was to legislate from the bench. Is this unusual? No, anyone who has been in a trial court knows that judges often decline to grant strong motions to dismiss because it does not seem fair to throw a plaintiff out of court.
What does this mean for employers? If you have not already revised your employment manuals and sexual harassment training to include sexual orientation and gender identity, I would suggest you make the revisions. While the 7th Circuit’s opinion is not controlling in Texas, a Supreme Court decision may be on the way. I would like to think that if the 5th Circuit addresses this issue, they would find that the term “sex” does not mean “sexual orientation”, I would have thought the same of the 7th Circuit as it has a conservative reputation. If you are hoping that an appeal of this case to the United States Supreme Court from the 7th Circuit will resolve the issue, don’t hold your breath. I would not be surprised if a liberal institution like a community college is persuaded by academia not to appeal. Plus, it could take another two years before the Supreme Court heard the case.