Married on Saturday and Fired on Monday: Hively v. Ivy Tech Community College: Resolving the Disconnect Under Title Vii

• Jurisdiction: United States,Federal
• Citation: Vol. 97
• Publication year: 2021

97 Nebraska L. Rev. 225. Married on Saturday and Fired on Monday: Hively v. Ivy Tech Community College: Resolving the Disconnect Under Title VII

Married on Saturday and Fired on Monday: Hively v. Ivy Tech Community College: Resolving the Disconnect Under Title VII(fn*)

Shannon M. Bond

TABLE OF CONTENTS

I. Introduction .......................................... 226

II. Background ........................................... 228
A. Title VII .......................................... 228
1. Creation and Effect of Title VII ................ 228
2. The Supreme Court's Interpretation of Title VII ....................................... 231
B. Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. 2017) .................................... 233
C. Circuit Split ....................................... 235

III. Analysis .............................................. 238
A. Departure from Precedent ......................... 239
B. Interpretation ..................................... 241
1. Broad Goal of Title VII ........................ 242
2. Broadening Title VII Interpretations ........... 244
C. Gender Nonconformity Claim ...................... 248
D. Associational Claim ............................... 251
E. Policy Implications ................................ 254

IV. Conclusion ............................................ 256

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I. INTRODUCTION

Americans are raised with the fundamental idea that they can live their lives freely and enjoy inalienable rights such as "life, liberty and the pursuit of happiness."(fn1) But that is not always the case. Imagine Lisa and Kathy, two women who have been in a happy relationship for fifteen years, but who have been unable to symbolically consecrate that healthy relationship in marriage. Then, imagine their elation upon seeing news headlines on Friday, June 26, 2015, stating that they at last could be legally married in all fifty states.(fn2) As an expression of their newly recognized constitutional right,(fn3) Lisa and Kathy get married on Saturday, June 27, 2015.(fn4) After celebrating Saturday night and finally enjoying their time as a couple on Sunday, June 28, 2015, it is back to work on Monday.

Monday is when this happily married couple's story abruptly changes. When Kathy's boss discovers that she had celebrated the Obergefell outcome by getting married to Lisa over the weekend, the boss fires Kathy. Her boss may have done so because of religious views,(fn5) political views, or general outrage for the case's outcome. Until

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April 4, 2017, this practice was permitted nationwide under Title VII of the Civil Rights Act.(fn6)

However, the Seventh Circuit ruled otherwise in Hively v. Ivy Tech Community College (Hively 2), which is the subject of this Note.(fn7) This Note evaluates whether employment discrimination based on sexual orientation is protected under Title VII's prohibition of discrimination based on sex. Part II provides a background of the history, purpose, and effect of Title VII. Part II also outlines the circuit split created by Hively 2.(fn8) Part III analyzes whether existing precedent in the First, Third, Fourth, Fifth, Sixth, Eighth, Tenth, and Eleventh Circuits, or alternatively the Seventh and Second Circuits' departure from precedent, is correct. Part III argues that by looking at the broad goals of Title VII and the existing valid claims of discrimination based on gender nonconformity and discrimination based on racial association, the Seventh Circuit correctly decided Hively 2. Part III also notes that while the overall outcome was correct, certain aspects of the majority's reasoning were flawed.

This Article proposes that the correct analysis uses interpretations grounded in the established broad goals of Title VII and existing precedent allowing claims of gender nonconformity and associational claims under Title VII. This approach ultimately fulfills Title VII's purpose of protecting employees who are otherwise exercising their constitutional right to associate with whom they desire and "define and express their identity" as they wish, but who face retaliation for expressing those rights in the conditions of their employment or are discharged from their employment.(fn9) Part III also examines the policy implications of overturning precedent, as the court in Hively 2 did.(fn10) Part IV summarizes why this proposed standard offers the best protection for employees and conforms to the purpose of Title VII.

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II. BACKGROUND

A. Title VII

1. Creation and Effect of Title VII

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual . . . because of such individual's race, color, religion, sex, or national origin."(fn11) The purpose of Title VII is to protect employees and create equality in the workplace, where there were significant disparities before, by prohibiting discrimination based on race, color, religion, sex, or national origin;(fn12) and to create the Equal Employment Opportunity Commission, an agency through which employees can seek resolution of discrimination issues.(fn13) The Civil Rights Act critically expanded employee rights and protection of certain groups of people who were socially disadvantaged, as shown through the enumerated categories, and continues to do so through the interpretive expansions of those categories.

Prior to Congress's implementation of the Civil Rights Act of 1964, there were many disparities in the workforce generally, as well as within the workplace. Before the enactment of Title VII, it was common to find job listings in newspapers that required applicants to state their marital status, or listings separated into categories of jobs for women and jobs for men.(fn14) Disparities in employment opportunities were so egregious, especially in the context of race, that civil rights groups held protests and riots across the nation, most notably coming to a climax in the infamous Birmingham riots.(fn15) These events led President John F. Kennedy to make a statement on June 11, 1963, in an address to the nation, stating:

We are confronted primarily with a moral issue. It is as old as the scriptures and it is as clear as the American Constitution. The heart of the question is whether all Americans are afforded equal rights and equal opportunities, whether we are going to treat our fellow Americans as we want to be

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treated . . . . Now the time has come for this nation to fulfill its promise. The events of Birmingham and elsewhere have so increased the cries for equality that no city or state or legislative body can prudently ignore them.(fn16)

The changes that President Kennedy envisioned in his address were finally realized on July 2, 1964, when Congress passed the Civil Rights Act of 1964.(fn17)

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual . . . because of such individual's race, color, religion, sex, or national origin."(fn18) Congress passed Title VII in light of egregious racism in the employment context and the need for legislation that would "close existing gaps" in employment law and protect African Americans as well as other minority groups at risk of employment discrimination by employers.(fn19) Two days before Title VII passed, Representative Howard Smith proposed that the category of sex be added.(fn20) He stated that it should be included because it "[would] do some good for the minority sex."(fn21) Despite this category being a last-minute addition to the proposed bill,(fn22) the amendment relating to sex passed by a vote of 168 to 133 in the House of Representatives, which sent the bill to the Senate, where it made amendments unrelated to

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the "sex" amendment.(fn23) Those amendments received a concurrence from the House on July 2, 1964, and President Johnson signed the bill into law.(fn24)

The inclusion of sex in Title VII has made a marked difference both within the workplace and in work opportunities for women. While only approximately 38% of women participated in the labor force in 1963, within ten years that number increased to 45%.(fn25) Such a rapid change after the passage of Title VII can be attributed in part to the prohibition of discrimination,(fn26) which in turn created more employment opportunities and safe work environments for women.(fn27) These opportunities and safe environments continued to increase throughout the years with the passage of supplementary law such as The Pregnancy Discrimination Act of 1978(fn28) and judicial interpretative expansions of Title VII.(fn29) As a result of the increased protections in

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accordance with the purpose of Title VII, as of 2015, 57% of women were participating in the labor force.(fn30)

While Title VII has fulfilled its purpose for many individuals, it has failed to protect a significant portion of the workforce-those who identify with a sexual orientation other than hetero sexual.(fn31) This Note focuses on that portion of the workforce.

2. The Supreme Court's Interpretation of Title VII

Though the Supreme Court has made many beneficial interpretative expansions to Title VII's prohibition of discrimination based on sex,(fn32) it has not yet addressed whether sexual orientation discrimination is prohibited as a form of discrimination based on sex.(fn33) As noted in subsection...