Saturday, July 30, 2016

Hively v. Ivy Tech. Comm. Coll.: Judicial Restraint and the Recognition of LGBT Protections Under Title VII (Updated 11/30/16)

Update:  On November 30, 2016, the Seventh Circuit heard oral arguments in the en banc rehearing in the Hively case discussed below. Based on the questions, it appears likely that the court will conclude that Title VII prohibits sexual orientation discrimination. Although it's not clear what the court's ultimate reasoning will be, most judges seemed swayed by the straightforward argument that treating a man who is sexually attracted to men less favorably than a woman who is sexually attracted to men is sex discrimination. The only judge who seemed to question this logic was (I think) Judge Diane Sykes, a George W. Bush appointee who has been named by President-elect Trump as a possible successor to Antonin Scalia on the Supreme Court.  

In Hively v. Ivy Technology Community College, No 15-1720 (7th Cir. July 28, 2016), the court held that Title VII of the Civil Rights Act of 1964 does not prohibit discrimination based on sexual orientation. Significantly, Hively is the first federal court of appeals decision to address this question since the EEOC issued an administrative ruling in Baldwin v. Foxx, EEOC Appeal No. 0120133080 (July 16, 2015), concluding that sexual orientation discrimination constitutes sex discrimination under Title VII. The court endorsed much of the reasoning in Baldwin, but given unequivocal Seventh Circuit precedent and repeated congressional rejection of legislation that would prohibit sexual orientation discrimination, the court concluded that its hands were tied in the absence of a Supreme Court opinion or new legislation.

As I've discussed in prior posts here and here, I think there are strong arguments that sexual orientation discrimination is a form of sex discrimination, but I still don't disagree that sexual orientation discrimination can be reasonably seen as fundamentally different from other forms of sex discrimination. Unlike the sex stereotyping that may result in discrimination against a woman perceived as aggressive, for example, sexual orientation is widely recognized as a status. Such categories are to some extent artificial, but it is hard to fault judges for declining to end-run congressional authority by finding coverage for sexual orientation discrimination under existing law. In this respect, Hively is a model of judicial restraint.

The Seventh Circuit's reasoning in Hively also suggests that Title VII does not cover discrimination based on gender identity. Some courts, like the Sixth Circuit in Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004), have relied on the Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), to conclude that discrimination based on gender identity violates Title VII because it is a form of sex stereotyping. But as with sexual orientation discrimination, Congress has repeatedly refused to enact protections against gender identity discrimination.  So if the Seventh Circuit was unwilling to defy Congress to protect gay men and lesbians, it may likewise be unwilling to defy Congress to protect transgender individuals.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.