Labor & Employment Law Section

By Sean F. Herrmann

Practitioners in our field have grown accustomed to seeing others’ dismay as they discover that Title VII does not bar sexual orientation discrimination. “That can’t be true—it’s 2017!” For decades, the prevailing belief, and reality, was that employers could discriminate against employees on the basis of their sexual orientations with relative impunity and the wronged employees would generally have no legal recourse. Hardened employment lawyers got used to this, but for most people this situation was nearly impossible to comprehend.

That common-sense disbelief has finally led somewhere. On April 4, 2017, the full 7th Circuit U.S. Court of Appeals, in an 8-3 decision, ruled that sex discrimination extends to sexual orientation. The case is Hively v. Ivy Tech Community College of Indiana, No. 15-1720, (7th Cir. Apr. 4, 2017) (https://assets.documentcloud.org/documents/3536022/Hively-Opinion.pdf_) and we should get to know it.

Kimberly Hively, the plaintiff-appellant, was a part-time, adjunct professor at Ivy Tech Community College. She was, as the court put it, “openly lesbian.” Hively applied for six full-time positions and received none of them. Ivy Tech eventually decided not to renew her existing contract. Without the assistance of counsel, Hively filed an EEOC Charge that bluntly stated, “I believe I am being discriminated against based on my sexual orientation. I believe I have been discriminated against and that my rights under Title VII of the Civil Rights Act of 1964 were violated.”

Predictably, things initially appeared quite bleak for Hively. She acted pro se and filed in district court after receiving her right to sue letter from the EEOC. Ivy Tech moved to dismiss, arguing that Hively’s complaint did not state a claim upon which relief could be granted because, simply, sexual orientation was not a protected class under Title VII. Predictably, the district court agreed with Ivy Tech and granted its motion.

But Hively wasn’t done. The Lambda Legal Defense & Education Fund took her case and appealed the decision to the 7th Circuit. Predictably, the panel affirmed the district court’s decision.

Then the unpredictable happened. Sitting en banc, the 7th Circuit reversed. Writing for the court, Chief Judge Diane Wood explained: “The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.” Specifically, Judge Wood reviewed Supreme Court cases from the last 20 years, culminating with 2015’s Obergefell v. Hodges decision, which ended state bans on gay marriage. The law was changing.

Judge Wood continued, “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’ The effort to do so has led to confusing and contradictory results, as our panel opinion illustrated so well.” And Judge Richard Posner, concurring, set forth an explicitly more cautious approach to reversing and remanding. Namely, he contended that our nation’s understanding of “sex” and “sex discrimination” has changed since 1964 and that should not be ignored. Quoting a 1920 Justice Holmes decision, Judge Posner said, “We must consider what this country has become in deciding what that [statute] has reserved.” The law has not necessarily changed—the country has. Regardless of how you split the hairs, this decision is historic.

Your friends were right. Sexual orientation is covered by Title VII. Duh. This is certainly the case in Illinois, Indiana, and Wisconsin, at least. What does this mean for us in the 4th Circuit? Well, it provides new, persuasive authority that Title VII’s prohibition against sex discrimination encompasses sexual orientation discrimination as well. Both Judge Wood and Judge Posner offer compelling reasons for other courts to break with tradition. And maybe, just maybe, the next time a Kimberly Hivey calls your office, you will pick up the phone.