"a Fresh Look": Title Vii's New Promise for Lgbt Discrimination Protection Post-hively

• Publication year: 2019

"A Fresh Look": Title VII's New Promise for LGBT Discrimination Protection Post-Hively

Devon Sherrell

"A FRESH LOOK": TITLE VII'S NEW PROMISE FOR LGBT DISCRIMINATION PROTECTION POST-HIVELY^†

Abstract

While about half of the states have passed antidiscrimination statutes that protect against sexual orientation discrimination, in the other half LGBT individuals face threats to their livelihoods and their dignity simply for being who they are. The U.S. Supreme Court does not recognize LGBT status as a class subject to heightened scrutiny and legislative efforts to pass nationwide discrimination protections for LGBT individuals, including an attempted amendment to the Civil Rights Act, have been unsuccessful. Further, until 2017, every federal circuit held that Title VII of the Civil Rights Act, prohibiting employment discrimination based on sex, did not include protection against sexual orientation discrimination. However, the Seventh Circuit took a "fresh look" at Title VII and recently reversed course, holding in Hively v. Ivy Tech Community College that Title VII's sex discrimination prohibition extends to sexual orientation discrimination, perhaps paving the way for national employment discrimination protection for LGBT individuals.

While the Hively decision demonstrates Title VII's promise as a strong method for achieving national LGBT employment protections, some commentators believe the Supreme Court's decision in Burwell v. Hobby Lobby allowing certain private employers to assert statutory religious freedom claims would allow private employers to seek religious exemptions to Title VII's sexual orientation protections. This Comment argues, however, that such claims will likely be unsuccessful because Title VII meets the Religious Freedom Restoration Act's strict scrutiny standard. Further, reliance on Title VII provides other advantages including obviating the need for LGBT individuals to rely on nonuniform state and local protections and the possibility that federal courts may expand Hively's rationale to other federal statutes prohibiting sex discrimination.

Ultimately, this Comment concludes that the Seventh Circuit's interpretation of Title VII serves as the best defense against sexual orientation discrimination even in the face of religious objection and that litigants should focus on expanding the Hively rationales to other federal circuits to develop more contemporary opinions and possibly greater consensus before the Supreme Court ultimately resolves the issue.

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Introduction...........................................................................................1103

I. The Histories of RFRA and Title VII........................................1107

A. Free Exercise Jurisprudence, RFRA, and Hobby Lobby ....... 1108
B. Title VII and Hively................................................................ 1111

II. Title VII Provides the Best Defense Against LGBT Discrimination on the Basis of Religious Objection............1116

A. Title VII Meets the Strict Scrutiny Standard Required by RFRA ...................................................................................... 1118

1. Title VII Enforcement Actions and the Substantial Burden Requirement...................................................................... 1119
2. RFRA's Relatively Weak Strict Scrutiny Standard........... 1121
3. Examining Title VII Under the Strict Scrutiny Standard 1122
4. The Ministerial Exception and lntrareligious Employment Decisions .......................................................................... 1125

B. Title VII Obviates the Need for Reliance on Nonuniform Laws and Policies ................................................................................... 1126

1. Nonuniformity of Antidiscrimination Statutes and RFRA Statutes Among the States................................................. 1127
2. lmpact of National Antidiscrimination Legislation on LGBT lndividuals ........................................................................ 1129
3. lmpact of National Antidiscrimination Legislation on Multistate Businesses ....................................................... 1130

C. Expanding the Hively lnterpretation of "Sex Discrimination" to Other Federal Statutes ........................................................... 1132

1. Sex Discrimination Under Title IX................................... 1133
2. Sex Discrimination Under the Equal Credit Opportunity Act..................................................................................... 1134
3. Sex Discrimination Under the Fair Housing Act ............. 1135

III. Extending Hively's Rationale to Other Federal Circuits .. 1136

A. The Comparative Method in Other Federal Circuits ............. 1137
B. The Associational Method in Other Federal Circuits ............ 1140
C. Challenges and Alternatives to Expanding Title VII Through Federal Courts ........................................................................ 1142

Conclusion...............................................................................................1143

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Introduction

"Every single American[—]gay, straight, lesbian, bisexual, transgender[—]every single American deserves to be treated equally in the eyes of the law and in the eyes of our society. It's a pretty simple proposition."

—President Barack Obama¹

In 2009, Kimberly Hively, an adjunct instructor at Ivy Tech Community College in Indiana for fourteen years, kissed her girlfriend goodbye in the campus parking lot before work.² The next day, she was reprimanded for unprofessionalism.³ For the next four years, despite her substantial qualifications and the fact that she had never received a negative review, she was consistently denied promotions, was never granted a single interview for the six full-time positions she applied for, and ultimately lost her teaching position in 2014.⁴ She filed a pro se complaint with the EEOC and a pro se complaint to the U.S. District Court for the Northern District of Indiana, charging the college with discriminating against her for being a lesbian.⁵ However, she faced an uphill battle—neither federal law nor Indiana law prevented the college from discriminating against her because of her sexual orientation.⁶ Hively's experience is not an isolated one—over a quarter of LGBT employees nationwide report experiencing discrimination or harassment in the workplace and nearly half of the LGBT population lives in areas where they can be discriminated against for simply being who they are.⁷

LGBT rights have expanded significantly over the past decade; however, employment discrimination against LGBT people remains a pervasive and widespread national problem.⁸ Although twenty-two states have passed or

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amended state civil rights or employment statutes to prohibit LGBT discrimination, in twenty-eight states, a gay person can get "married on Saturday and then fired on Monday for just that act."⁹ The prevalence of such discrimination and its negative impacts on LGBT people has been recognized and documented by courts; in complaints to administrative agencies; and in newspapers, books, and other media.¹⁰ Still, while Congress has attempted several times to provide employment discrimination protections for LGBT people, it has ultimately been unsuccessful.¹¹

Employment discrimination on the basis of sexual orientation and gender identity is widespread and poses significant physical and psychological harm to LGBT individuals.¹² One national survey found that 42% of LGB-identified individuals had experienced at least one form of employment discrimination because of their sexual orientation¹³ and another found that 78% of transgender individuals had experienced workplace discrimination.¹⁴ This discrimination can lead to harmful personal effects on LGBT individuals and overall wage and employment disparities.¹⁵ Fear of discrimination may lead LGBT employees to conceal their sexual or gender identities leading to less job satisfaction, less trust among fellow employees, and even physical symptoms of stress and isolation.¹⁶ Those who have experienced discrimination firsthand report greater rates of absenteeism and mental health issues like depression.¹⁷ Further, studies show gay men are paid less on average than their straight peers and transgender individuals face significantly higher unemployment rates and poverty rates than all groups surveyed.¹⁸ Because discrimination has such a proven negative impact on LGBT individuals, ensuring that all LGBT employees are protected by legislation should be a serious policy rationale for expanding antidiscrimination protections.

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In response to these disparities and Congress's repeated failure to act on employment discrimination against LGBT people, activists and legal scholars have been left to shoulder the daunting task of putting forth arguments for workplace protection absent express statutory authority.¹⁹ For decades, LGBT litigants have consistently argued, and federal courts of appeals have consistently rejected, that Title VII of the Civil Rights Act prohibits sexual orientation employment discrimination pursuant to its protections against sex discrimination in the workplace.²⁰ Indeed, until 2017, every federal circuit had ruled expressly that sexual orientation is not included in the discrimination protections of Title VII—until the Seventh Circuit's recent en banc decision in Hively v. Ivy Tech Community College.²¹

In Hively, the Seventh Circuit, sitting en banc, took "a fresh look" at the statute and held that Title VII's prohibition against "sex discrimination" encompasses sexual orientation discrimination.²² This interpretation follows a similar reading of Title VII by the EEOC in 2015.²³ The Hively decision creates a circuit split among the U.S. Courts of Appeals that the U.S. Supreme Court has yet to resolve. Soon after Hively, the Second Circuit sitting en banc in Zarda v. Altitude...