Title VII of the 1964 Civil Rights Act prohibits employers from discriminating against employees and job applicants based on five traits, including sex. Since 1994 Congress has often been urged to recognize sexual orientation as a protected trait, as several state laws do, but it has not done so. But on April 4, 2017, the Seventh Circuit Court of Appeals held en banc that Title VII outlaws sexual orientation discrimination. Hively v. Ivy Tech Community College of Indiana. The court did so not by creating a sixth protected trait, but by ruling that sexual orientation discrimination is sex discrimination. Hively puts the Seventh Circuit squarely at odds with nine other circuits.
The word sex in Title VII has undergone quite a metamorphosis in 53 years. It was put in the original bill by a congressman who thought Congress would balk and kill the bill, but his amendment was approved without comment. Since then, with no legislative history to aid them, courts have had to discern the word’s meaning on their own. Early on they saw it as embracing only biological differences between women and men. But in the 1980’s, they adopted a broader, gender-based view; under it, sex includes socio-sexual roles and behavioral expressions such as masculinity and femininity. Courts also recognized sexual harassment as sex discrimination.
The next step was to view discrimination based on nonconformity with gender norms as sex discrimination, which the Supreme Court took in Price Waterhouse, Inc. v. Hopkins (1989). Nine years later, Oncale v. Sundowner Offshore Services, Inc., held that Title VII reaches same-sex discrimination. Congress may not have had this in mind in 1964, the court said, but on its face the words “discriminate because of sex” in the act do not embrace only the opposite sex.
After Oncale, gay and lesbian employees who were harassed by coworkers seized on it and Price Waterhouse to get around the fact that sexual orientation is not a protected class. With increasing success, they urged courts to hold that even if one is homosexual, to harass that person because they don’t act, dress, or talk like members of their sex typically do is sex stereotyping. After that, courts were put to the hair-splitting task of discerning the motive for harassment: if it resulted from a belief that the target was gay there was no Title VII claim, but if it stemmed from perceived gender nonconformity a cause of action did exist.
In Hively, the court said that it was time to stop the legal gymnastics and to say flat out that sexual orientation discrimination is sex discrimination. To treat people differently because they prefer their sex to the other is the epitome of gender stereotyping, which is illegal under the rationales of Price Waterhouse and Oncale.
Concurring, Judge Posner tweaked the majority for claiming that it was carrying those decisions to their logical end. Better to say that courts may adapt statutory language to meet the felt needs of the time and be done with it. Predictably, the dissent argued that courts overstep their bounds if they usurp the legislative role, especially when Congress has a 23-year record of rejecting efforts to do what the majority did.
What’s in store in the future? Although Hively applies only in Wisconsin, Illinois, and Indiana, any en banc ruling, even one as controversial as this one will be, carries weight. It could be persuasive in some circuits that have ruled differently, especially as these are panel decisions. Several circuits have already been asked to take up this issue en banc.
That said, it is worth stressing that although the circuits have uniformly held that gender stereotyping is sex discrimination, nine are aligned against Hively. For all, or even most, to alter their position is hardly foreseeable, especially as each hung its hat on Congress’s inaction in this area. As well, although the Equal Employment Opportunity Commission has read Title VII as Hively did since 2015, how long it will do so under this administration is an open question. For it to go the other way would take wind out of the sails of the majority’s position.
Because there is a circuit split, the Supreme Court may weigh in. If it does and Justice Gorsuch remains the newest member, it could divide 4–4 with Justice Kennedy in the middle. Then the question would be which Kennedy shows up, the conservative or the author of so many pro-gay-rights rulings. It’s a close question, but in the end my money is on the proposition that what Congress has done in this area—or, more aptly, not done—would be decisive for him.