Circuit Courts Split On Title Vii Coverage for Sexual Orientation Discrimination, 1117 COBJ, Vol. 46, No. 10 Pg. 40

• Author: JOHN HUSBAND, J.

46 Colo.Law. 40

Circuit Courts Split on Title VII Coverage for Sexual Orientation Discrimination

Vol. 46, No. 10 [Page 40]

The Colorado Lawyer

November, 2017

LABOR AND EMPLOYMENT LAW

JOHN HUSBAND, J.

The Seventh Circuit Court of Appeals is the first federal appellate court to rule that Title VII prohibits discrimination based on sexual orientation. This article discusses its en banc ruling in Hively v. Ivy Technical Community College, which created a split on this issue with other federal circuit courts, including the Tenth Circuit.

Recently, the Seventh Circuit Court of Appeals reversed its own precedent and became the first federal appellate court to rule that Tide VII prohibits discrimination based on sexual orientation. Its en banc ruling in Hively v. Ivy Technical Community College¹ created a split with other federal circuit courts, which have held that Tide VII does not protect workers against sexual orientation discrimination.

Professor Hively Sues Under Title VII

Kimberly Hively was an adjunct professor at Ivy Tech Community College in Indiana.² Hively, a pro se plaintiff, sued the college under Title VII, claiming that she was not selected for a full-time professor position and her adjunct contract was not renewed because she is a lesbian.³The district court dismissed her case for failure to state a claim on the grounds that sexual orientation is not a protected class under Title VII.⁴

Lambda Legal, on behalf of Hively, filed an appeal of the dismissal.⁵A three-judge panel of die Seventh Circuit upheld die district court's dismissal, noting that it was bound by existing Seventh Circuit decisions holding that discrimination on die basis of sexual orientation is not protected under Tide VII.^[6]

Judge Ilana Rovner authorized that decision. She stated that although gender nonconformity claims are cognizable under Tide VII, and it is difficult to distinguish gender nonconformity claims from sexual orientation claims, the three-judge panel was bound by prior Seventh Circuit precedent that failed to recognize Tide VII claims based on sexual orientation.⁷ Judge Rovner wrote that Supreme Court cases and appellate court decisions dealing with sexual orientation have created a "confused hodgepodge of cases"⁸ and noted that while the Supreme Court had ruled that same-sex couples have the constitutional right to marry,⁹ there is a "paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act."^[10] Yet the three-judge panel concluded it was bound by the Seventh Circuit's precedent, and therefore affirmed the dismissal of Hively's sexual orientation discrimination claims.¹¹

The Ruling: Sexual Orientation Discrimination Is a Form of Sex Discrimination

The Seventh Circuit agreed to rehear the case en banc.¹² In its 8-3 decision, the full Court held that discrimination on the basis of sexual orientation is a form of sex discrimination and therefore is prohibited by Tide VII.¹³

The majority opinion, written by Chief Judge Diane Wood, stated that it was beyond the Court's power to "amend" Tide VII to add a new protected category; thus the Court was tasked with deciding what it meant to discriminate on the basis of sex, particularly whether discrimination on the basis of sexual orientation was a subset of discrimination on the basis of sex.¹⁴ As a question of statutory interpretation, the Court looked at two theories offered by Hively to support a conclusion that Title VII's prohibition of "sex discrimination" includes discrimination on the basis of sexual orientation.

First, the Court considered a comparative method by which it attempted to isolate the significance of Hively's sex to her employer's decisions.¹⁵ The Court considered whether her employer would have treated her the same way if everything in Hively's situation were the same except for her sex.¹⁶ Specifically, the Seventh Circuit looked at whether Ivy Tech would have refused to promote Hively or renew Hively's contract if she had been a man married to a woman, instead of a woman married to, or living with, a woman.[^17]

The Court found that Hively represented a classic case of failing to conform to the female stereotype because she is not heterosexual, and heterosexuality is currently the norm.¹⁸ Relying on the 1989 Supreme Court case Price Waterhouse v. Hopkins, in which sex stereotyping was ruled a form of sex discrimination under Title VII, the Seventh Circuit ruled that Hively had set forth a claim of sex discrimination under Tide VII based on her allegations of employment discrimination due to her sexual orientation.¹⁹

Hively's second theory was based on discrimination by association—that Title VII protects against discrimination based on the...