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Seventh Circuit could be the Title VII path-maker on sexual orientation

December 2nd, 2016  |  Pamela Wolf

Clearly, the Seventh Circuit is deeply struggling with the question of whether Title VII covers sexual orientation discrimination—a question that has already been answered in the affirmative by the federal government and a legal concept steadily growing stronger as a sign of the times. In July, the majority of a three-judge Seventh Circuit panel, in Hively v. Ivy Tech Community College, ruled that sexual orientation is not a protected category under Title VII. But that holding was vacated on October 11 to permit en banc consideration of the question and the case that brought it to the appeals court—a move largely taken as tipping in favor of the plaintiff and some likelihood that the Seventh Circuit would reverse course. In oral arguments on November 30, the full Seventh Circuit panel and the parties were confronted by the legal and practical contradictions surrounding the question.

Is it time for a change? Even the July panel majority that excluded sexual orientation from Title VII’s shield could not avoid gazing into a crystal ball, conceding, “perhaps the writing is on the wall” but also stressing that “[u]ntil the writing comes in the form of a Supreme Court opinion or new legislation,” sexual orientation is beyond the current scope of Title VII.

And of course, the question of whether the scope of Title VII must be expanded by either judicial or legislative fiat before discrimination based on sexual orientation is made unlawful is at the heart of the issue in this case and many others. Describing the case in human terms, Greg Nevins, Counsel and Workplace Fairness Program Director for Lambda Legal, who argued on behalf of the plaintiff, told Employment Law Daily, “We represent … a math instructor who was denied advancement and ultimately fired from her job at Ivy Tech Community College in South Bend, Indiana, after she had been seen kissing her girlfriend in the parking lot.”

Should employers be able to fire a woman for kissing another woman? The question presented in the case represents a legal conundrum fully vetted in the earlier Seventh Circuit ruling, with consideration of the Supreme Court’s June 2015 decision in Obergefell v. Hodges, finding that same-sex couples have the fundamental right to marry and states may not refuse to recognize a lawful same-sex marriage. The panel also considered the High Court’s 1998 ruling in Oncale v. Sundowner Offshore Servs., Inc., holding that a sexual harassment claim is cognizable under Title VII regardless of the sexual orientation of the parties involved.

That a same-sex couple is guaranteed the right to marry, but a woman seen kissing another women can be lawfully fired from her job for doing so, produces at the very least cognitive dissonance, if not legal hypocrisy. That Title VII protects against sexual harassment, regardless of sexual orientation, but offers no protection for a woman kissing a woman, is perplexing at best.

“It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry,” the Seventh Circuit panel majority observed in July. “The agency tasked with enforcing Title VII does not condone it; many of the federal courts to consider the matter have stated that they do not condone it; and this court undoubtedly does not condone it.”

But what about precedent? The July panel majority also referenced two cases, released two months apart in 2000, in which the Seventh Circuit held that Title VII offers no protection from, nor remedies for, discrimination based on sexual orientation. These cases—Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc. and Spearman v. Ford Motor Co.—held that harassment based solely upon a person’s sexual preference or orientation is not an unlawful employment practice under Title VII. The Seventh Circuit has cited those cases in ruling, “without exception,” that the Title VII prohibition on discrimination based on “sex” extends only to discrimination based on a person’s gender and not that aimed at a person’s sexual orientation.

The appeals court also observed that the Seventh Circuit was in line with all the other circuit courts that have decided or opined about the matter and acknowledged the EEOC’s July 2015 decision in Baldwin v. Foxx, where the Commission concluded, for the first time, that sexual orientation is inherently a “sex-based consideration,” and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.

What is “sex” under Title VII? The appeal of this case is clearly aimed at undoing the existing legal hypocrisy, at least to the extent it exists within the territory of the Seventh Circuit. And at the center of the battle is the question of what exactly is “sex,” the basis upon which employers may not discriminate under Title VII. “[W]e asked all eleven judges of the Seventh Circuit to clarify that the protections under Title VII of the Civil Rights Act which prohibit discrimination on the basis of sex, also protect gay and lesbian employees because sexual orientation discrimination is a form of sex discrimination,” Nivens said, framing his client’s position neatly—the same contention that has been advanced by the EEOC.

Early in oral argument, Niven was faced with the what is “sex” question, put by one of the Seventh Circuit judges, who queried whether in his view there is there one broad category “sex discrimination” that manifests itself in various ways that include discrimination based on sexual orientation, or whether sexual orientation is somehow different from sex?

“The Supreme Court has said if you’re being treated differently because of your sex then it qualifies as sex discrimination, even if there is a colloquial phrase that might be more familiar to people,” Nevins replied. He pointed to the example of male-on-female sexual harassment, saying that the usual target may not come home and tell her closest friend, “I’ve just been discriminated against because of my sex.” In fact, there may be many other reasons why the woman was targeted by the harasser, such as she conveniently worked the same hours, was more attractive, or was considered more “interested.” The fact is that she was a woman, and that’s why she was discriminated against, Nevin said. The same is true here, he continued. The fact that there is the colloquial expression, “sexual orientation discrimination,” that is more familiar in describing it, doesn’t change the basic truth that it was his client’s attraction to women that was held against her as a woman and wasn’t held against any men who worked for Ivy Tech.

But for sex. Niven confirmed that he sees it as a “but-for” sex test. He also pointed out that one of the often-cited purposes of Title VII is to strike at the entire spectrum of disparate treatment of men and women, noting there is also gender stereotypes—he saw his client’s case clearly aligned with that purpose.

Niven’s take on the hearing: “The judges clearly understood our arguments, they asked great questions, and I am feeling hopeful.”