On October 11, 2016, the U.S. Seventh Circuit Court of Appeals granted en banc (by the full court) review in Hively v. Ivy Tech Community College. This rare move means that the entire Seventh Circuit court will reconsider its previous decision, which was originally issued on July 28, 2016.
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Kimberly Hively began teaching as a part-time adjunct professor at Ivy Tech Community College in 2000. In 2013, representing herself, she filed a complaint in district court alleging that she had been blocked from full-time employment at Ivy Tech because of her sexual orientation, in violation of Title VII. Hively alleged that although she had the necessary qualifications for full-time employment and had never received a negative evaluation, Ivy Tech refused to even interview her for any of the six full-time positions for which she applied between 2009 and 2014.
After Hively filed her complaint in federal district court, Ivy Tech immediately filed a motion to dismiss her complaint, on the grounds that Title VII does not apply to claims of sexual orientation discrimination and, therefore, Hively had no legal remedy. The district court agreed and granted the motion to dismiss. Hively, who by this time was represented by Lambda Legal, a national LGBT civil rights organization, appealed that ruling to the Seventh Circuit Court of Appeals. On July 28, 2016, the Seventh Circuit, relying on precedent, affirmed the district court’s ruling, agreeing that harassment or discrimination based solely on a person’s sexual preference or orientation (and not on one’s gender) is not an unlawful employment practice under Title VII. The Court explained that a long line of cases in the circuit had concluded that Title VII does not apply to claims of sexual orientation for three reasons. First, when Congress enacted Title VII prohibiting discrimination based on “sex,” it was using the word’s plain meaning, making it unlawful to discriminate against women because they are women and against men because they are men. Second, the legislative history of Title VII made it clear that Congress primarily meant to remedy race discrimination, and “sex” was added as a protected category only in a last-ditch effort to scuttle the legislation. Therefore, the Court concluded, “Congress had a narrow view of sex in mind when it passed the Civil Rights Act.” Finally, the Court noted that, in spite of a growing public outcry against sexual orientation discrimination, the Congress has repeatedly refused to expand Title VII to cover sexual orientation, providing further evidence that it intended a very narrow reading of the term “sex” when it passed the Civil Rights Act.
The Seventh Circuit’s reasoning did not stop there. The Court felt compelled to acknowledge the recent position of the EEOC, as set forth in the EEOC’s July 16, 2015 decision in Baldwin v. Fox, that an allegation of sexual orientation discrimination is necessarily an allegation of sex discrimination under Title VII. The EEOC rejected the argument that the plain language of Title VII and Congressional inaction mean that Title VII does not cover sexual orientation, and noted that the U.S. Supreme Court has previously expanded Title VII’s coverage by applying Title VII’s prohibition against sex discrimination to cases involving discrimination based on gender-nonconformity (i.e., where an employee is harassed or punished for failing to live up to societal norms about appropriate masculine and feminine behaviors, mannerisms and appearances) and same-sex sexual harassment. The Seventh Circuit went on to discuss cases in other federal circuits that have grappled with this issue, noting that these courts increasingly question whether it makes sense to distinguish between gender non-conformity discrimination and sexual orientation. The Court then spent considerable time detailing the evolution of case law on this subject, as courts across the country have sought to draw the line between the two types of discrimination, some concluding that the line was too difficult to draw, others concluding that the line did not exist.
In spite of the considerable case law in other circuits concluding that there is no distinction between gender norm discrimination and sexual orientation discrimination, the Seventh Circuit nevertheless concluded that a distinction exists, and affirmed the Hively district court’s decision dismissing Hively’s claim. It is this ruling that will now be reconsidered by the entire Seventh Circuit.
Given the significance of this case and the lengthy examination the Seventh Circuit afforded it, perhaps it is not so surprising after all that the entire Court now wishes to weigh in.