As discussed in prior posts, the
Equal Employment Opportunity Commission (EEOC) has a strategic enforcement
agenda focused on expanding Title VII protections to encompass gender identity
and sexual orientation. Courts are weighing in, with varied results. According
to the EEOC’s website, a number
of federal courts have sided with the EEOC’s interpretation of Title VII,
primarily in the context of gender identity. On July 28, 2016, however, the
U.S. Court of Appeals for the Seventh Circuit held that, under past Circuit
precedent, Title VII’s anti-discrimination protections do not extend to claims of sexual orientation. At the same time, the
Seventh Circuit panel observed that there is an “emerging consensus that sexual
orientation in the workplace can no longer be tolerated,” and the panel appeared
to be nudging the U.S. Supreme Court or Congress to take up the issue and
provide direction to the lower federal courts.
The Seventh Circuit issued its
recent decision in the case of Hively v. Ivy Tech Cmty. Coll. The case was brought by Kimberly
Hively, a part-time adjunct professor at Indiana-based Ivey Tech Community
College. After working for the college for about three years, Hively filed a “bare
bones” charge of discrimination and then a lawsuit under Title VII, alleging that
she was passed over for six full-time positions and that her adjunct contract
was not renewed based on her sexual orientation. Ivy Tech moved to dismiss
Hively’s complaint on grounds that Title VII does not extend to claims of
sexual orientation discrimination. The federal district court granted Ivy
Tech’s motion, and, on appeal, the Seventh Circuit affirmed.
In reaching its ruling, the
Seventh Circuit undertook a meticulous journey through prior Title VII case
law, including Price Waterhouse v.
Hopkins, 490 U.S. 228 (1989) (finding that gender stereotyping discrimination
violates Title VII) and a host of lower court cases involving sexual
orientation discrimination and sex-stereotyping discrimination cases. The court
noted that, in cases where LGBT plaintiffs frame their Title VII claims as
discrimination based on gender non-conformity (e.g. sex-stereotyping
discrimination) as opposed to their sexual orientation itself, some courts have
recognized viable Title VII claims. Specifically, the court noted that claims
tended to be successful when plaintiffs “could carefully cull out the gender
non-conformity discrimination from the sexual orientation discrimination.” On
the other hand, plaintiffs “who [did] not look, act, or appear to be gender
non-conforming, but [were] merely known to be or perceived to be gay or lesbian
[did] not fare as well” in court.
The Seventh Circuit went on to explain
that “the distinction between gender non-conformity claims and sexual
orientation claims has created an odd state of affairs” in which LGBT employees
are protected under Title VII only if they do not conform to society’s
stereotypical norms about how gay men or lesbian women look and act. On the
other hand, LGBT employees who otherwise conform to traditional gender norms in
dress and mannerisms generally cannot state a viable Title VII claim. The court
questioned the legitimacy of this dichotomy on grounds 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.”
Nevertheless, the Seventh Circuit
ultimately upheld the dismissal of Ms. Hively’s suit. It held that it was bound
by prior Seventh Circuit precedent rejecting the notion that Title VII
encompasses a sexual orientation claim not based on allegations of sex
stereotyping discrimination. The court cautioned, however, that “[p]erhaps the
handwriting is on the wall” for future changes to the scope of Title VII. The
Seventh Circuit panel stated that it did not condone discrimination based on
sexual orientation and that other courts are beginning to “question the
doctrinaire distinction between gender non-conformity discrimination and sexual
orientation discrimination and [are] coming up short on rational answers.”
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