On April 4, 2017, the Seventh Circuit became the first appellate court in the country to rule that Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate against a person based on their sexual orientation. The Act prohibits discrimination based on “race, color, sex, or national origin.” Prior to Hively, appellate courts uniformly dismissed actions brought under Title VII for discrimination based on sexual orientation on the basis that “sexual orientation” simply was not a protected class identified by Congress in the Act. However, in Hively v. Ivy Tech Community College of Indiana, 2017 WL 1230393 (7th Cir. April 4, 2017), the court reversed its prior dismissal of a complaint brought by an openly lesbian professor at a community college, ruling that discrimination based on “sex” includes one’s “sexual orientation.”
In so ruling, the Seventh Circuit pointed to multiple factors for creating new law. First, it recognized that ever since the Supreme Court’s recognition that the Due Process and Equal Protection Clauses protect the right of same sex couples to get married, a paradox now exists whereby “a person can be married on a Sunday and then fired on Monday for just that act.”
Second, the court drew parallels to the Supreme Court’s landmark decision in Loving v. Virginia, 388 U.S. 1 which address race discrimination. There, the court held that employees who were discriminated against based on their association with another race (i.e. interracial marriages) suffered discrimination based on the employee’s own race. In conducting this analysis, the Seventh Circuit utilized a comparative approach, as the Supreme Court did in Loving, by isolating the plaintiff’s sex in the employer’s decision. In other words, did the plaintiff describe a situation in which, holding all other factors constant, and changing only her sex, would she have been treated the same way? The court thus found that if it were to change Hively’s sex to male, then she would no longer have been in a lesbian relationship and, therefore, the outcome would have been different. Accordingly, the court held that, accepting the allegations in the complaint was true, Hively stated a claim for discrimination based on her sex.
In the end, the Seventh Circuit ruled 8-3 in plaintiff’s favor. Predictably, the dissent was critical of the majority’s judicial activism, arguing that Title VII does not, on its face, provide a remedy for this kind of discrimination; an argument Judge Sykes noted that should be made to Congress. However, in his concurrence with the majority, Judge Posner noted that statutory and constitutional provisions are frequently interpreted based on the needs and understanding of modern society. As an example, Posner cited to Texas v. Johnson in which the Supreme Court, including the late Justice Scalia, ruled that the burning of the American flag was protected by the First Amendment’s free speech clause despite the fact that such an act doesn’t necessarily involve speech at all.
Clearly, this is not the last word on the issue. A split amongst federal appellate courts now exists and the Supreme Court will likely take up the issue at some point. It remains to be seen, however, how soon that will be.