I’ve written previously about the Equal Employment Opportunity Commission’s (EEOC) attempts to expand existing federal anti-discrimination employment law to cover sexual orientation here and here. Last week, a seventh circuit appellate panel sitting in Chicago unanimously ruled in Hively v. Ivy Tech Community College that Title VII does not protect against sexual orientation discrimination.
The case facts are simple. Kimberly Hively was hired as an adjunct professor by the defendant in 2000 and she claims in a 2013 charge with the EEOC that she was “[d]enied full time employment and promotions based on sexual orientation” in violation of Title VII. The college claims that sexual orientation is not protected under Title VII. The appellate panel relied primarily on two cases from 2000 that rejected expanding sex discrimination to include sexual orientation. Sex discrimination was viewed (and upheld as such) as gender discrimination. Many cases since 2000 have upheld this position and the court remains bound by this precedent. The court, in a footnote, lists the numerous failed attempts by Congress to amend Title VII to include sexual orientation.
The court’s opinion takes an in-depth look at recent related cases. They note than a number of cases have been successful where gay people have charged that they were discriminated against for non-gender conformity (i.e. a lesbian not acting “feminine” enough).
And so for the last quarter century since Price Waterhouse [v. Hopkins], courts have been haphazardly, and with limited success, trying to figure out how to draw the line between gender norm discrimination, which can form the basis of a legal claim under Price Waterhouse’s interpretation of Title VII, and sexual orientation discrimination, which is not cognizable underTitle VII.
Did the recent Supreme Court cases involving same-sex marriage (Obergefell v. Hodges and United States v. Windsor) change this stance? After all, if same-sex couples have the right to marry, shouldn’t they also have the right to work without discrimination? No necessarily. The Supreme Court declined to opine on whether current laws, equal protection, and due process apply to sexual orientation in the workplace in any of those cases. The court noted the irony:
The cases as they stand do, however, create a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act. For although federal law now guarantees anyone the right to marry another person of the same gender, Title VII, to the extent it does not reach sexual orientation discrimination, also allows employers to fire that employee for doing so. From an employee’s perspective, the right to marriage might not feel like a real right if she can be fired for exercising it. Many citizens would be surprised to learn that under federal law any private employer can summon an employee into his office and state, “You are a hard?working employee and have added much value to my company, but I am firing you because you are gay.” And the employee would have no recourse whatsoever—unless she happens to live in a state or locality with an anti?discrimination statute that includes sexual orientation.
In NJ, we have the Law Against Discrimination to protect against sexual orientation discrimination. But Alabama, Alaska, Arkansas, Arizona, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Virginia, West Virginia, and Wyoming have no protections for sexual orientation discrimination — more than half the states in the union.
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.
Is this the end of this case? With other cases pending in different federal circuits, it is likely that one of these cases will make it to the US Supreme Court — particularly if two circuits go different ways on the case. With an open slot on the Supreme Court pending resolution, stay tuned.
In the meantime, mediating your discrimination case is still your best bet.