Schorr & Associates’ Employment Case of The Week ending October 14, 2016

Hively v. Ivy Tech Community College, 830 F.3d 69 (7th Cir. 2016) (vacated en banc October 11, 2016)

This week the Seventh Circuit Court of Appeals vacated a decision from July which held that discrimination on the basis of sexual orientation is not protected under Title VII of the Civil Rights Act of 1964.  The Seventh Circuit will now hear the matter en banc, and if the Seventh Circuit overturns, which appears to be the intention, this could very well be the case that forces the U.S. Supreme Court to finally provide job protection to homosexuals under federal law.

Kimberly Hively, a part-time adjunct professor, sued Ivy Tech Community College in South Bend, Indiana, alleging that she had been denied numerous full-time positions solely due to her sexual orientation.  The College’s only defense is that Title VII does not apply to claims of sexual orientation and therefore Hively made a claim for which there is no legal remedy.  The District Court agreed and Hively appealed to the Seventh Circuit.  The Seventh Circuit affirmed, but attacked the law as illogical and anachronistic.  The Seventh Circuit opinion by Judge Rovner is remarkable in the detail and logic in which the Court strongly disagrees with Congress in continuing permit discrimination on the basis of sexual orientation.

Courts have been fighting for years against Congress’s continuing refusal to amend Title VII to expressly prohibit job discrimination on the basis of sexual orientation.  The result has been a ridiculous body of law in which homosexuals can sue under Title VII under the theory of “sexual stereotyping”, but only if men are effeminate or women are “butch”.  If gay men act like men or lesbians act like women, they are not protected by Title VII.  The Seventh Circuit complained:

    As things stand now, however, our understanding of Title VII leaves us with a somewhat odd body of case law that protects a lesbian who faces discrimination because she fails to meet some superficial gender norms—wearing pants instead of dresses, having short hair, not wearing make up—but not a lesbian who meets cosmetic gender norms, but violates the most essential of gender stereotypes by marrying another woman. We are left with a body of law that values the wearing of pants and earrings over marriage. It seems likely that neither the proponents nor the opponents of protecting employees from sexual orientation discrimination would be satisfied with a body of case law that protects “flamboyant” gay men and “butch” lesbians but not the lesbian or gay employee who act and appear straight. This type of gerrymandering to exclude some forms of gender-norm discrimination but not others leads to unsatisfying results.

The Seventh Circuit complained that it was compelled to follow the law because Congress had made it very clear that it would not protect homosexuals from job discrimination. In affirming, the Court, clearly disgusted, urged the Supreme Court or Congress to right this injustice:

    Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it; many of the federal courts to consider the matter have stated that they do not condone it; and this court undoubtedly does not condone it. But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent, and therefore, the decision of the district court is AFFIRMED.

The decision of the Seventh Circuit to vacate the decision and hear argument en banc can only be for the purpose of reversing and holding that sexual orientation discrimination is discrimination on the basis of sex.  If the Seventh Circuit reverses, the Supreme Court will have little choice but to take on this injustice once and for all.  Considering that the Supreme Court has already ruled that homosexuals have the right to marry each other, it is outrageous that an employer should be permitted to fire that same employee for legally marrying the person they love.  Chief Justice Roberts asked during oral argument in the gay marriage case of Obergefell v. Hodges,”if  Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?” Good question indeed.

This issue would not be a problem in New Jersey, where our Law Against Discrimination expressly prohibits discrimination on the basis of sexual orientation as well as gender identity and expression.  But this case is from South Bend County in the shadow of Notre Dame in Penceland.  With no state or county law to protect against discrimination on the basis of sexual orientation, Ms. Hively’s only hope is that the Seventh Circuit and then the United States Supreme Court will finally right this disgraceful wrong.

Seventh Circuit Judges: Bauer, Ripple, and Rovner (Rovner on the opinion).
Indiana District Court Judge: Rudy Lozano.