A three-judge panel of the Chicago-based U.S. Court of Appeals for the 7th Circuit ruled on July 28 that a lesbian professor could not sue the local community college in South Bend, Indiana, for sexual orientation discrimination under Title VII of the federal Civil Rights Act of 1964, rejecting her argument that anti-gay discrimination is a form of sex discrimination in violation of that law. Hively v. Ivy Tech Community College, 2016 U.S. App. LEXIS 13746, 2016 Westlaw 4039703.
Weighing in on a question that has taken on renewed vitality since last July, when the Equal Employment Opportunity Commission (EEOC), a federal agency that enforces Title VII, ruled that David Baldwin, a gay air traffic controller, could bring an employment discrimination claim against the U.S. Transportation Department, the court, while describing the existing precedents in the 7th Circuit as “illogical,” nonetheless concluded that it was bound by those precedents.
Kimberly Hively began teaching part-time at Ivy Tech Community College in 2000. She applied six times for full-time positions for which she claimed to be qualified, but she was always turned down and her part-time contract was not renewed in July 2014. By then, she had already filed a complaint with the EEOC on December 13, 2013, representing herself. This was about 18 months before that agency changed its long-standing position and began to approve gay Title VII claims in the air traffic controller case. The EEOC’s position, however, is not binding on federal courts.
Hively did not file a complaint with the South Bend human rights agency. Although that city’s anti-discrimination law was amended in 2012 to include sexual orientation, the city does not have jurisdiction to legislate about personnel practices at state-operated educational institutions, and they are explicitly exempted from coverage by the local law. There is no Indiana state law forbidding sexual orientation discrimination.
After the EEOC concluded that it did not have jurisdiction, it sent Hively a “right to sue” letter. She filed her claim in federal court on August 15, 2014. The college filed a motion to dismiss, arguing that sexual orientation discrimination claims are not covered under Title VII. Hively, citing the advances of gay rights in the courts, urged that the college should not be allowed to discriminate based on sexual orientation. On March 3, 2015, U.S. District Judge Rudy Lozano granted the college’s motion. Citing a 7th Circuit decision from 2000 and a 2010 decision by the federal district court in Indiana, Judge Lozano wrote, “While this Court is sympathetic to the arguments made by Hively in her response brief, this Court is bound by Seventh Circuit precedent. Because sexual orientation is not recognized as a protected class [sic] under Title VII, that claim must be dismissed.”
Hively also alleged a violation of 42 U.S.C. Section 1981, which Judge Lozano had to dismiss as well, because the Supreme Court interprets that 19th-century statute to apply only to race discrimination claims. HiverlyivelyHi also asked to amend her complaint to push a claim for breach of contract, seeking enforcement of the college’s published non-discrimination policy, but that claim would arise under Indiana state contract law, and federal courts usually refuse to address state law claims when they have determined that the plaintiff has no federal law claim.
The fate Hively suffered in the district court shows the perils of individuals trying to navigate the complexities of federal employment law without legal representation. A well-versed lawyer might have found a way to construct a 14th Amendment Equal Protection claim on her behalf, which could be directed against individual school officials if she could allege sufficient facts to suggest that they refused to consider her applications because she is a lesbian, although there would be no guarantee of success because the Supreme Court has yet to rule on whether sexual orientation discrimination claims against public officials are entitled to heightened or strict scrutiny.
Attorney Gregory Nevins from Lambda Legal’s Atlanta office represented her on appeal to the 7th Circuit, where oral argument took place on September 30 and a long wait began for the court’s opinion. The wait seemed surprising, because the three-judge panel would most likely easily conclude, as had Judge Lozano, that circuit precedent would dictate affirmance. But the court took nine months to release its decision. (By contrast, the 7th Circuit issued its marriage equality decision in 2014 less than two weeks after oral argument.)
Judge Ilana Rovner’s opinion obviously took so long because the majority of the panel was not content just to issue a pro forma dismissal in reliance on circuit precedent. The first, shorter, part of Rovner’s opinion, performing that function, was joined by Senior Judges William Bauer and Kenneth Ripple. But the second, much longer, part, joined by Judge Ripple, provides a lengthy and detailed discussion of how the EEOC’s Baldwin decision has led to an intense debate in the district courts around the country about how those old precedents are clearly out-of-step with where the country has moved on LGBT rights.
Judge Rovner (or, more likely, Lambda Legal in its appellate brief) collected district court decisions from all over the country – particularly from circuits where there were no adverse appeals court rulings – in which judges have decided to follow the EEOC’s reasoning and find that discrimination because of sexual orientation is “necessarily” sex discrimination.
The logical pathway to that conclusion runs through the Supreme Court’s 1989 ruling, Price Waterhouse v. Hopkins, which accepted the argument that discrimination against an employee because that employee fails to meet their employer’s sex-stereotypical views about how employees present themselves, is evidence of sex discrimination. That case involved a woman who was denied a partnership because she was perceived as inadequately feminine in her dress and conduct by partners who voted on the partnership decision.
Since 1989 some district courts have extended protection under Title VII to LGBT plaintiffs who could plausibly allege that they encountered discrimination because of sex stereotypes, but other courts have refused to take such cases, criticizing them as attempting to “bootstrap” coverage for sexual orientation into Title VII against the intent of Congress. What has emerged is a hodgepodge of decisions, resulting in the odd situation that, at least in some circuits, a gay plaintiff who is also obviously gender-nonconforming in terms of dress and speech may be protected under Title VII using the stereotyping theory, but a “straight-acting” gay plaintiff would have no protection. Judge Rovner pointed out the irrationality of this, but, unfortunately, the 7th Circuit precedents seemed inescapable to this panel.
After discussing how various courts have pointed out the difficulties of distinguishing between a sex-stereotyping case and a sexual orientation case, she observed that the difficult is not necessarily impossible. “There may indeed be some aspects of a worker’s sexual orientation that create a target for discrimination apart from any issues related to gender,” she wrote. “Harassment may be based on prejudicial or stereotypical ideas about particular aspects of the gay and lesbian ‘lifestyle,’ including ideas about promiscuity, religious beliefs, spending habits, child-rearing, sexual practices, or politics. Although it seems likely that most of the causes of discrimination based on sexual orientation ultimately stem from employers’ and co-workers’ discomfort with a lesbian woman’s or a gay man’s failure to abide by gender norms, we cannot say that it must be so in all cases. Therefore we cannot conclude that the two must necessarily be coextensive unless or until either the legislature or the Supreme Court says it is so.”
In this case, she pointed out, Kimberly Hively had not made any specific allegations of gender non-conformity, other than the implicit contention that being a lesbian, as such, was gender non-conforming in that she was attracted to women rather than men. Although a few district courts, especially after the Baldwin ruling, have found that to be enough to squeeze into coverage under the sex stereotype theory, the 7th Circuit hasn’t gotten there yet, and this panel did not feel empowered to extend circuit precedent to accept that argument.
While noting the significant advances in LGBT rights at the Supreme Court from Romer v. Evans (1996) through Obergefell v. Hodges (2015), Judge Rovner pointed out that in none of those cases has the Supreme Court said anything that would deal directly with the question whether anti-gay discrimination must be treated as a form of sex discrimination under Title VII. But she did observe the stark legal anomaly created by last year’s marriage equality decision.
“The cases as they do stand, however, create a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act,” she wrote. “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, that 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. More than half of the United States, however, do not have such protections.”
She pointed out the additional oddity that even a “straight” employee who was discharged because her employer mistakenly thought she was a lesbian would have no protection, unless she could show her overt violation of gender stereotypes aws the reason for the discrimination. Straight people are not protected from “mistaken” sexual orientation discrimination!
Judge Rovner observed that this state of the law “leads to unsatisfying results.” It also is inconsistent with Title VII race discrimination cases that impose liability when an employer fires a white employee because he or she is dating or marrying a person of a different race. It is now well-established that it is race discrimination to single out somebody because of their interracial social life. Why not, as a logical matter, prohibit discriminating against somebody because of their same-sex social life? The logic seems irrefutable. “It is true that Hively has not made the express claim that she was discriminated against based on her relationship with a woman,” wrote Judge Rovner, “but that is, after all, the very essence of sexual orientation discrimination. It is discrimination based on the nature of an associational relationship – in this case, one based on gender.”
Rover found it “curious” that “the Supreme Court has opted not to weigh in on the question of whether Title VII’s prohibition on sex-based discrimination would extend to protect against sexual orientation discrimination” and that even in “the watershed case of Obergefell” the court “made no mention of the stigma and injury that comes from excluding lesbian, gay, and bisexual persons from the workforce or subjecting them to un-remediable harassment and discrimination.” But, frustratingly, the Supreme Court has yet to tackle head-on the direct issue of anti-gay discrimination in a way that would provide guidance to lower federal courts and state courts, and has so far consistently denied review in cases presenting this question. “In addition to the Supreme Court’s silence,” she observed, “Congress has time and time against said ‘no’ to every attempt to add sexual orientation to the list of categories protected from discrimination by Title VII.”
Ultimately the judge was very critical of the 7th Circuit’s precedent. “It may be that the rationale appellate courts, including this one, have used to distinguish between gender non-conformity discrimination claims and sexual orientation discrimination claims will not hold up under future rigorous analysis,” she wrote. “It seems illogical to entertain gender non-conformity claims under Title VII where the non-conformity involves style of dress or manner of speaking, but not when the gender non-conformity involves the sine qua non of gender stereotypes – with whom a person engages in sexual relationships. And we can see no rational reason to entertain sex discrimination claims for those who defy gender norms by looking or acting stereotypically gay or lesbian (even if they are not), but not for those who are openly gay but otherwise comply with gender norms. We allow two women or two men to marry, but allow employers to terminate them for doing so. Perchance, in time, these inconsistencies will come to be seen as denying practical workability and will lead us to reconsider our precedent.” She then quoted Justice Kennedy’s Obergefell decision, pointing out how “new insights and societal understandings” could lead to changes in the law.
Rovner concluded that it was “unlikely” that society would tolerate this anomalous situation for long. “Perhaps the writing is on the wall,” she wrote. “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.”
This conclusion is not totally accurate. The full 7th Circuit, considering this issue en banc, could decide to overrule the prior precedent within the circuit without waiting for passage of the Equality Act (which would amend Title VII to add sexual orientation and gender identity) or for a Supreme Court ruling. Judge Rovner’s extended critique implies receptivity to rethinking the precedent, so perhaps a motion for rehearing en banc could find favor with a majority of the judges of the circuit.
A little “circuit math” suggests the possibility: There are nine active judges on the 7th Circuit, with two vacancies for which President Obama has made nominations that are stalled in the Senate. Only one of the active judges was appointed by President Obama, David Hamilton, and two were appointed by President Clinton, Chief Judge Diane Wood and Ann Williams. All the other judges are appointees of Presidents George H.W. Bush and Ronald Reagan. (There is no appointee of George W. Bush sitting on the 7th Circuit.)
The three-judge panel in this case consisted entirely of Republican appointees: Judge Rovner by the first President Bush, Senior Judges Bauer and Ripple by Presidents Ford and Reagan. Interestingly, Ripple and Rovner, both Republican appointees with long service on the court, agree that the precedent is “illogical” and not “rational.” Unfortunately, Judge Ripple, as a Senior Judge, would not participate in an en banc rehearing. But perhaps despite the strong 6-3 overall Republican tilt of this circuit, a full nine-member bench might find a majority for granting en banc rehearing and changing the circuit precedent. That would require at least one more Republican appointee to join Rovner and the three Democratic appointees to make a 5-4 majority.
One of the other Republican appointees, Richard Posner, could be the prime candidate for that. He wrote the 7th Circuit’s magnificent marriage equality decision, which reflected his strong receptivity to reconsidering his views on LGBT issues, a point he has subsequently reiterated in a law review article musing about his changing understanding of LGBT issues since he was appointed to the court by Ronald Reagan in the 1980s.
On the other hand, it is possible that this opinion took so long to get out because some attempt was made within the judges’ chambers to provoke a spontaneous en banc reconsideration , but it was unsuccessful. Who knows? Mysterious are the inner workings of our courts.