The Seventh Circuit Court of Appeals has just ruled in an 8-3 decision that employers cannot discriminate based on sexual orientation. In the case, Hively v. Ivy Tech Community College of Indiana, Kimberly Hively, the plaintiff was fired from her job as an instructor after she was seen kissing her then-girlfriend in the parking lot.
Hively originally sued Ivy Tech in 2014 under Title VII of the Civil Rights Act of 1964. Unfortunately, the trial court dismissed her lawsuit, holding that Title VII only protects on the basis of sex, race, color, nationality and religion.
Thankfully, Lambda Legal stepped in and set an appeal in motion in April 2015. In July 2016, a three-judge panel ruled against Hively. Lambda Legal wasn’t done — they requested a rehearing of the case in front of all eleven judges of the Seventh Circuit court. Last October, that was granted, and the case started that November.
Chief Judge Diane Wood wrote in her opinion, released today:
Our panel described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all. Hively’s claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man).
Judge Diane Sykes wrote the dissenting opinion, joined by Judges William Bauer and Michael Kanne. Their argument is based on precedent — that for years Title VII hasn’t been held to cover sexual orientation, thus it shouldn’t be now:
This interpretation has been stable for many decades and is broadly accepted; all circuits agree that sexual-orientation discrimination is a distinct form of discrimination and is not synonymous with sex discrimination…
Today the court jettisons the prevailing interpretation and installs the polar opposite. Suddenly sexual-orientation discrimination is sex discrimination and thus is actionable under Title VII. What justification is offered for this radical change in a well-established, uniform interpretation of an important—indeed, transformational—statute? My colleagues take note of the Supreme Court’s “absence from the debate.”… What debate? There is no debate, at least not in the relevant sense. Our long-standing interpretation of Title VII is not an outlier. From the statute’s inception to the present day, the appellate courts have unanimously and repeatedly read the statute the same way, as my colleagues must and do acknowledge. … The Supreme Court has had no need to weigh in, and the unanimity among the courts of appeals strongly suggests that our longsettled [sic] interpretation is correct.
Of course there is a robust debate on this subject in our culture, media, and politics. Attitudes about gay rights have dramatically shifted in the 53 years since the Civil Rights Act was adopted. Lambda Legal’s proposed new reading of Title VII — offered on behalf of plaintiff Kimberly Hively at the appellate stage of this litigation — has a strong foothold in current popular opinion.
The three dissenting judges were all appointed by Republican presidents — Sykes was appointed by George W. Bush, Kanne was appointed by Reagan and Senior Judge Bauer was appointed by Ford. On the other hand, Chief Judge Wood was a Clinton appointee.
Judge Sykes’ dissent is not surprising — she was included on a May 2016 list of potential Supreme Court nominees released by the Trump campaign.
Greg Nevins, Employment Fairness Program Director for Lambda Legal said, “This decision is gamechanger for lesbian and gay employees facing discrimination in the workplace and sends a clear message to employers: it is against the law to discriminate on the basis of sexual orientation.”
It is yet unknown whether or not Ivy Tech will appeal, which would take the case to the Supreme Court, should the Court decide to hear the case.
(Featured photo by Chris Ryan via iStock)