In a major decision breaking with every other federal appeals court to rule on the issue, the en banc Seventh Circuit held today that sexual orientation discrimination is a form of sex discrimination forbidden by Title VII of the Civil Rights Act of 1964. The vote was 8-3. The opinion in Hively v. Ivy Tech Community College,by Judge Diane Wood, reasoned that sexual orientation discrimination is essentially indistinguishable from sex discrimination because the former relies on stereotyped concepts about how men and women should behave sexually and about with whom they should associate in their intimate lives. Because the decision creates a circuit split on the issue of anti-gay employment discrimination for the first time, the matter could now go to the Supreme Court as soon as next Term.
The Seventh Circuit overruled its own precedent in reaching its conclusion, noting that Supreme Court rulings under Title VII, and generally in the field of gay rights, in the past 30 years justified a reconsideration.
[O]ver the years the Court has issued several opinions that are relevant to the issue before us. Key among those decisions are Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). Price Waterhouse held that the practice of gender stereotyping falls within Title VII’s prohibition against sex discrimination, and Oncale clarified that it makes no difference if the sex of the harasser is (or is not) the same as the sex of the victim. Our panel frankly acknowledged how difficult it is “to extricate the gender nonconformity claims from the sexual orientation claims.” 830 F.3d at 709. That effort, it commented, has led to a “confused hodge-podge of cases.” Id. at 711. It also noted that “all gay, lesbian and bisexual persons fail to comply with the sine qua non of gender stereotypes—that all men should form intimate relationships only with women, and all women should form intimate relationships only with men.” Id. Especially since the Supreme Court’s recognition that the Due Process and Equal Protection Clauses of the Constitution protect the right of same-sex couples to marry, Obergefell v. Hodges, 135 S.Ct. 2584 (2015), bizarre results ensue from the current regime. As the panel noted, it creates “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.” 830 F.3d at 714. Finally, the panel highlighted the sharp tension between a rule that fails to recognize that discrimination on the basis of the sex with whom a person associates is a form of sex discrimination, and the rule, recognized since Loving v. Virginia, 388 U.S. 1 (1967), that discrimination on the basis of the race with whom a person associates is a form of racial discrimination.
Judge Richard Posner filed a wide-ranging concurring opinion in which, among other things, he took aim at Fox News: “[I]t has taken our courts and our society a considerable while to realize that sexual harassment, which has been pervasive in many workplaces (including many Capitol Hill offices and, notoriously, Fox News, among many other institutions), is a form of sex discrimination.”
Judge Diane Sykes dissented.
The case was brought by Lambda Legal on behalf of an adjunct professor who claimed that Ivy Tech Community College discriminated against her because she is a lesbian.