"[W]riting on the wall is not enough." 7th Circuit Refuses to Read Sexual Orientation Discrimination Protection into Title VII

The point of this recent case is that Title VII does not cover sexual orientation discrimination, but the court wishes that it did. The Seventh Circuit Court of Appeals, the federal appellate court that covers Illinois, Indiana, and Wisconsin, issued an interesting opinion last month addressing whether discrimination on the basis of sexual orientation is covered by Title VII of the Civil Rights Act. The opinion, Hively v. Ivy Tech Community College, had a somewhat unexpected outcome—the court ruled that the plaintiff’s case should be dismissed because Title VII does not cover sexual orientation discrimination. What made the case interesting (at least to attorneys) is that the court spent 42 pages essentially teeing up the issue for Supreme Court consideration. It strongly suggested that if it weren’t bound by its prior opinions, it would recognize sexual orientation as a protected by virtue of Title VII’s prohibition on sex-based discrimination.

This issue presents a unique challenge for religious organizations wishing to maintain moral codes for employees that include traditional religious standards for marriage and human sexuality. The opinion is helpful because it lays out all the arguments in favor of expanding Title VII to cover sexual orientation discrimination. Understanding these arguments can help religious organizations and their counsel better appreciate the “writing on the wall.” Here is a summary of some of the main arguments:

The EEOC Has Taken the Position That Sexual Orientation Discrimination Is Indeed Discrimination on the Basis of Sex.

It has done so for three main reasons.

1. Discrimination on the basis of sexual orientation necessarily entails treating an employee less favorably because of the employee’s sex.

2. Discrimination on the basis of sexual orientation is actually associational discrimination on the basis of sex, in which discrimination occurs based on who a person dates or marries. This argument comes out of cases on race discrimination, which have routinely held that Title VII prohibits discrimination based on employee’s association with a person of another race, such as an interracial marriage or friendship.

3. Discrimination on the basis of sexual orientation is premised on the employee’s failure to live up to societal norms about appropriate masculine and feminine behaviors, mannerisms, and appearances.

Courts Are Having a Difficult Time Unraveling Sexual Orientation Discrimination (Which Most Refuse to Recognize as Part of Title VII) from Gender Stereotyping (Which Most Will Consider Part of Title VII).

This has created a patchwork quilt of decisions, making it difficult to logically extend either theory, and making the outcome of cases turn on unique facts. In light of this, district courts “are beginning to ask whether the sexual orientation-denying emperor of Title VII has no clothes.”

The Supreme Court’s Cases Deciding the Scope of Constitutional Rights for the Gay, Lesbian, and Bisexual Community Is Influential.

Though the court was quick to note that these decisions were not determinative, it was clear they were relevant to how courts should consider what it means to discriminate on the basis of sex.

For now, the Seventh Circuit has maintained the status quo. The court ultimately ended its lengthy discussion of this legal issue by noting that while perhaps, the writing is on the wall that the legal opinion is about to change, “writing on the wall is not enough . . . we must adhere to the writing of our prior precedent . . . .” But the issue is also currently before the Eleventh Circuit in Burrows v. College of Central Florida, which does not appear to have previously addressed the issue head on. Given the momentum and arguments from this case, it is possible the Eleventh Circuit could go the other way and create a circuit split that might entice the Supremes to take on the issue.

Also not yet determined is, even if the sexual orientation discrimination fell under sex discrimination, whether there would be an exception for religious organizations, such as there is for sex discrimination. We will continue watching these developments and provide updates on this important issue.

UPDATE:

On October 11, 2016, the Seventh Circuit granted a petition to rehear this case en banc, vacating the panel’s original opinion and judgment. This means the opinion is no longer good law, and that the full court will consider the issues in the case anew. Oral arguments before the full court are slated for November 30, 2016. Stay tuned for further updates.