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Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. Apr. 4, 2017) (en banc)

This decision was an instant sensation in the news and social media: Title VII of the Civil Rights Act of 1964 held to protect employees from discrimination because of sexual orientation (and, presumably, gender identity as well). Digging into the majority and separate opinions, we can trace different possible outcomes when this question inevitably reaches the U.S. Supreme Court.

Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. Apr. 4, 2017): For decades, the circuits have regularly rejected all claims of LGBTQ discrimination under Title VII, on the ground that "sex" - in 1964 - would have meant only binary male-female biological identity. Yet during the Obama Administration, the EEOC advanced a vision of "sex" that includes all expressions of gender, resulting in the agency opinions Baldwin v. Dep't of Transp., Appeal No. 0120133080 (July 15, 2015) (Title VII covers sexual orientation) and Macy v. Holder, EEOC Appeal No. 0120120821 (April, 20, 2012) (Title VII covers transgender individuals).

With the reasoning of these agency opinions, a new round of litigation blossomed over this question, with a number of district courts following Baldwin and Macy. But when these cases drifted upward, the U.S. Courts of Appeals adhered to the prior law and did not extend Title VII beyond the old, narrow definition of "sex" as men and women. Still, several opinions openly questioned the older precedent. Christiansen v. Omnicom Group, Inc., No. 16‐748 (2d Cir. Mar. 27, 2017) (Katzmann, C.J., and Brodie, D.J., concurring separately); Evans v. Georgia Regional Hospital, No. 15-15234 (11th Cir. Mar. 10, 2017) (Rosenbaum, J., dissenting); Hively v. Ivy Tech Cmty. Coll., No. 15‐1720 (7th Cir. July 28, 2016) (Rovner, J.).

The Seventh Circuit thus becomes the first U.S. Court of Appeals to peel back the old cases and find them unsustainable in 2017. Judge Rovner's original panel opinion faithfully adhered to the circuit's negative case law, yet also laid out the case for overruling the prior precedent ... and the en banc court did so yesterday, 8-3.

The bottom-line ruling is easy to summarize: Kimberly Hively states a claim under Title VII that she suffered discrimination when her employer, a community college, fired her because of being a lesbian. For law-geeks, a review of the majority (signed by Wood, C.J.), two separate concurrences (Posner, J. and Flaum and Ripple, J.J.), and dissent (Sykes, J., joined by Kanne and Bauer, J.J.) reveals several different directions the U.S. Supreme Court may follow in finally answering this interpretive question.

The majority opinion (joined fully by six judges, and in part by two more) begins by noting that "sex" as a protected classification has expanded under a succession of Supreme Court decisions: Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality) (discrimination against woman candidate for partnership because she supposedly did not behave femininely); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998) (same-sex harassment actionable under Title VII); Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (marriage equality guaranteed by Equal Protection clause). Notes the majority, "[t]he goalposts have been moving over the years, as the Supreme Court has shed more light on the scope of the language that already is in the statute: no sex discrimination."

The majority opinion notes that the standard tools of statutory construction (plain language, context, legislative history) do not supply complete or conclusive answers here. It rejects the employer's appeal to post-enactment history - the failure of Congress to expressly add "sexual orientation" to Title VII, and the use of "sexual orientation" as a protected class in other statutes - as too attenuated. Although Congress in more recent years has specified "sexual orientation," the majority notes that

"Congress may certainly choose to use both a belt and suspenders to achieve its objectives, and the fact that 'sex' and 'sexual orientation' discrimination may overlap in later statutes is of no help in determining whether sexual orientation discrimination is discrimination on the basis of sex for the purposes of Title VII."

[Indeed, Congress chose just such a course in 1964, by included both "race" and "color" as protected classifications in the Civil Rights Act.]

Adverting to the Supreme Court authority, the majority extracts the principle that though "Congress may not have anticipated a particular application of the law," this "cannot stand in the way of the provisions of the law that are on the books." Congress's limited understanding of sex did not, for instance, stand in the way of the Court recognizing sex harassment as a violation of Title VII (Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986)).

Thus, the majority interprets the term "sex" on a fresh slate.

First, beginning even with the narrowest conception of "sex," the majority holds that discrimination against a lesbian must also be discrimination against a woman: "Hively alleges that if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her ... This describes paradigmatic sex discrimination."

Second, Title VII protects employees from "sex" discrimination for not adhering to societal gender expectations or norms. "Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual." As the panel reasons:

"Any discomfort, disapproval, or job decision based on the fact that the complainant-woman or man-dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex. That means that it falls within Title VII's prohibition against sex discrimination, if it affects employment in one of the specified ways."

Finally, "sex" embraces discrimination on the basis of intimate association with people of the protected classification, as famously recognized (in the race arena) in Loving v. Virginia, 388 U.S. 1 (1967). "Thanks to Loving ... society understands now that such laws are (and always were) inherently racist." The outcome is the same with sex: "[T]o the extent that [Title VII] prohibits discrimination on the basis of the race of someone with whom the plaintiff associates, it also prohibits discrimination on the basis of the national origin, or the color, or the religion, or (as relevant here) the sex of the associate."

Supporting this interpretation, the majority notes that judicial attempts over the decades to draw a line between sexual-orientation and "sex stereotyping" cases have proven elusive, i.e., it "require[s] considerable calisthenics to remove the 'sex' from 'sexual orientation.'" The majority notes that "[t]he EEOC concluded, in its Baldwin decision, that such an effort cannot be reconciled with the straightforward language of Title VII."

The majority also notes the developing constitutional law of the rights of gays and lesbians. "Today's decision must be understood against the backdrop of the Supreme Court's decisions, not only in the field of employment discrimination, but also in the area of broader discrimination on the basis of sexual orientation." The opinion cites such advances as Romer v. Evans, 517 U.S. 620 (1996) (striking down a state constitutional provision forbidding any arm of the government from acting to protect "homosexual, lesbian, or bisexual" persons); Lawrence v. Texas, 539 U.S. 558 (2003) (overturning criminal sodomy laws); and United States v. Windsor, 133 S. Ct. 2675 (2013) (invalidating the federal Defense of Marriage Act).

In closing, the majority technically limits the decision to sexual orientation: "We hold only that a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes." It observes in a footnote that "we have no need to decide whether discrimination on the basis of 'gender'" is actionable, stating that it would visit the issue "[s]hould a case arise in which the facts require us to examine the differences (if any) between" gender and sex. Still, the opinion is drafted so that reasoning applies equally to transgender and other individuals.

Judge Posner, in his concurring opinion, argues that judges may, with the passage of time, find fresh meaning in statutory terms crafted in a different era:

"An example of this last form of interpretation-the form that in my mind is most clearly applicable to the present case-is the Sherman Antitrust Act, enacted in 1890, long before there was a sophisticated understanding of the economics of monopoly and competition. Times have changed; and for more than thirty years the Act has been interpreted in conformity to the modern, not the nineteenth-century, understanding of the relevant economics."

Older statutes are appropriately "interpreted on the basis of present need and understanding rather than original meaning." "This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch."

Thus, Judge Posner would hold, the meaning of "sex" in Title VII is not fixed by mid-twentieth century culture: "today 'sex' has a broader meaning than the genitalia you're born with." Like the majority, he points to the progression of the term "sex" under Title VII as courts have applied it since 1964:

"[I]t has taken our courts and our society a considerable while to realize that sexual harassment, which has been pervasive in many workplaces (including many Capitol Hill offices and, notoriously, Fox News, among many other institutions), is a form of sex discrimination. It has taken a little longer for realization to dawn that discrimination based on a woman's failure to fulfill stereotypical gender roles is also a form of sex discrimination. And it has taken still longer, with a substantial volume of cases struggling and failing to maintain a plausible, defensible line between sex discrimination and sexual-orientation discrimination, to realize that homosexuality is nothing worse than failing to fulfill stereotypical gender roles."

He concludes with a swipe at "originalist" interpretation: "We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963-1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught. Judge Posner, it should be noted, also demurs from the majority's reliance on Oncale v. Sundowner Offshore Servs., Inc. (as a ruling limited to the statutory provisions) as well as Loving v. Virginia (as a constitutional ruling).

Judge Flaum's opinion takes exception to importing the Supreme Court's constitutional lawmaking into Title VII (he thus does not join the final section of the majority's opinion), yet finds it unnecessary to follow that approach. He finds more narrowly that "discrimination against an employee on the basis of their homosexuality is necessarily, in part, discrimination based on their sex." He notes that Congress defined causation under Title VII, § 703(m) to include partial causes, i.e., "a motivating factor." Thus, "if discriminating against an employee because she is homosexual is equivalent to discriminating against her because she is (A) a woman who is (B) sexually attracted to women, then it is motivated, in part, by an enumerated trait: the employee's sex. That is all an employee must show to successfully allege a Title VII claim."

In dissent, Judge Sykes faults the majority (and Judge Posner's concurrence) for-in a word-eclecticism. She would rely neither on the developing constitutional law of LGBTQ rights, nor on the passage of time and mores, but only on what she deems the certitude of the meaning of Title VII "at its inception."

The dissent would use a number of data-points to support limiting "sex" to men-and-women: the consistent interpretation of federal courts of appeals over decades; the "ordinary" meaning of the word "sex" in 1964; the absence of the term "sexual orientation" in the statute (or indeed, from common parlance in the mis-1960s); and the use of that same term in other federal and state anti-discrimination statutes adopted since 1964.

The dissent also finds it easy to draw a line between biological sex and sexual orientation: "An employer who refuses to hire homosexuals is not drawing a line based on the job applicant's sex .... His discriminatory motivation is independent of and unrelated to the applicant's sex." It also rejects as spurious the comparison of whether Hively might have been treated differently if she'd been a man attracted to women. "[T]he majority distorts the comparative method by opportunistically framing the comparison. If the aim is to isolate actual discriminatory motive based on the plaintiff's sex, then we must hold everything constant except the plaintiff's sex. But my colleagues load the dice by changing two variables-the plaintiff's sex and sexual orientation-to arrive at the hypothetical comparator."

* * * *

What (in this writer's estimation) most clearly divides the different approaches is the extent to which one accepts the law of Title VII as a novel hybrid of statute and judicial common-law.

Congress significantly entrusted the judiciary, rather than an administrative enforcement agency, with the momentous task of desegregating the American workplace and promoting equal opportunity. And the courts proved equal to the burden, applying the law over the decades to innumerable fact-patterns with (often) minimal textual guidance. The development of sex- and race-harassment law, crafted out of "terms and conditions" of employment, is fully the product of judicial lawmaking. Judges have even been left to decide what is meant by "race" under Title VII, a central statutory term that Congress left undefined.

The use of federal judicial power to fill yet another gap in the law, the status of LGBTQ individuals, falls squarely-if to some, controversially-in this common-law realm. It is a retreat from the federal court's role under Title VII, and an act of misplaced judicial modesty, to kick this question all the way back to 1964.

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