When does the word “sex” mean “sexual orientation,” for purposes of employment discrimination? In the pivotal Hively v. Ivy Tech Community College ruling issued last month, an eight-member majority of all the federal Seventh Circuit judges expanded “sex” to encompass “sexual orientation” for purposes of Title VII protection, although for varying reasons expressed through concurring opinions. Three other judges dissented, urging judicial restraint in light of statutory interpretation constraints and settled law. How did the judges come to such differing conclusions, and what can nonprofit employers learn from this decision?
The Legal Landscape – Title VII’s Protected Classification of Immutable Characteristics
Title VII of the federal Civil Rights Act of 1964 prohibits employment discrimination based on specifically enumerated immutable classifications, such as sex, race, and national origin. In adjudicating discrimination claims, most federal appellate courts have distinguished between “sex” and “sexual orientation,” ruling that Title VII’s protection for the first term does not include the latter.
Contrary to these courts’ decisions (but consistent with the new Hively ruling), the Equal Employment Opportunity Commission has been treating sexual orientation claims as “sex” discrimination claims in handling employment discrimination at the initial claim stage. Notably, many state and local laws treat these terms as separate categories warranting legal protection. With the appellate-level court split, and amidst the background of the landmark Obergefell same-sex marriage decision and other significant cultural shifts, the stage is now set for a definitive U.S. Supreme Court ruling.
The Path to the Hively En Banc Ruling
The Hively case involves an openly lesbian teacher, Kim Hively, who worked part-time as a professor at a public, non-religious college. After unsuccessful efforts to obtain full-time work at Ivy Tech Community College, she sued and claimed that the college rejected her based on her sexual orientation in violation of Title VII of the 1964 Civil Rights Act.
On appeal from Ivy Tech’s successful motion to dismiss Hively’s claim, the case was assigned to a three-judge panel from the Seventh Circuit Court of Appeals (encompassing Illinois, Wisconsin, and Indiana). The court rejected her claim, with obvious and lengthy reluctance, concluding that Title VII’s protections did not extend to sexual orientation claims (see our September 2016 blog). As the court recognized, the Seventh Circuit’s settled case law does not allow for a Title VII sexual orientation claim. Expanding the types of claims protected by the statute may thus be a matter for legislative amendment of Title VII, although Congress has repeatedly refused to do so.
In rendering its decision, the Seventh Circuit panel focused on the 1989 Price Waterhouse v. Hopkins U.S. Supreme Court ruling. In that case, a woman successfully asserted a Title VII sex discrimination violation, based on evidence showing that she was not considered “feminine enough” and therefore failed to make partner. As the court described in great detail, subsequent court decisions have recognized the validity of gender nonconformity claims as within Title VII’s “sex” discrimination purview, such as Hopkins and more recently in several gender identity discrimination claims.
The court then stated that, “a groundswell of questions have arisen about the rationale for denying sexual orientation discrimination claims while allowing nearly indistinguishable gender non-conformity claims.” Further, the effort to distinguish those from sexual orientation cases thus led to a “confused hodge-podge of cases.” (Hively, 830 F.3d at 711.) Against this detailed but ultimately restrained backdrop, the Seventh Circuit panel thus implicitly invited the entire Seventh Circuit Court of Appeals to reconsider Hively’s claim through an en banc ruling, with all Seventh Circuit judges’ participation.
The Hively En Banc Ruling – Space for Title VII’s Judicial Expansion?
In light of these problems, and with an express nod to Obergefell, a majority of en banc Seventh Circuit judges decided to overrule the Seventh Circuit’s prior decisions and expand Title VII to cover sexual orientation. Five judges issued the main written opinion, authored by Chief Judge Wood. Three judges offered concurring opinions: Judge Posner arguing for further flexibility given changed times; and Judges Flaum and Ripple together arguing that sexual orientation discrimination should be actionable since sex plays a factor. The decision itself was made by a majority of the Seventh Circuit, but with splintered rationales.
Speaking through the five-judge main opinion, Chief Judge Wood first recognized that the court may not “amend” Title VII to add a new protected category as “obviously [lying] beyond our power.” However, the Wood opinion went on to conclude that “sexual orientation” is actually a subset of “sex” for Title VII purposes, as a “pure question of statutory interpretation and thus well within the judiciary’s competence.” (Hively slip op. at 6.)
With such judicial parameters creatively set forth, the Wood opinion turned to Title VII’s legislative history, correctly observing that the Seventh Circuit’s prior decisions have accepted as settled law that “Congress had nothing more than the traditional notion of ‘sex’ in mind when it voted to outlaw sex discrimination” (Hively en banc slip op. at 3, quoting Doe v. City of Belleville, 119 F.3 563, 572 (7th Cir. 1997)). The opinion further noted that federal appellate court decisions have likewise repeatedly reaffirmed this interpretation.
Nevertheless, the Wood opinion ultimately dismissed such settled interpretation. Instead, “[t]he goalposts have been moving over the years,” particularly in light of recent U.S. Supreme Court rulings on same-sex marriage and the EEOC’s expansive interpretation to include “sexual orientation” as protected by Title VII. Such recognition came despite the main group’s own acknowledgment that the Supreme Court has not ruled on this issue itself and that a court owes no deference to the EEOC, as an administrative agency subject to the judiciary’s legal interpretations.
The Wood opinion relied heavily on the Supreme Court’s 1998 ruling in Oncale v. Sundowner Offshore Services, Inc., which recognized the validity of a male-on-male sexual harassment claim under Title VII’s sex discrimination prohibition. The Hively decision quoted at length from Oncale, including the following: “[S]tatutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Relying on such language, the five-judge group determined that “[t]he Court could not have been clearer: the fact that the enacting Congress may not have anticipated a particular application of the law cannot stand in the way of the provisions of the law that are on the book.”
The Wood opinion then quickly moved on to conclude that “sexual orientation” is another appropriate extension of Title VII’s protection against “sex” discrimination, consistent with Title VII’s extension for sexual harassment and gender-nonconforming claims. Particularly with respect to Ms. Hively, she “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 exceptions): she is not heterosexual.” In other words, since her employer was “policing the boundaries” of acceptable behaviors, including and especially sexual behaviors for her as a woman, such treatment was covered by Title VII as “sex” discrimination. By defining non-heterosexual behavior as a type of gender nonconformity, the five-judge group found their argument’s bridge to conflate “sex” with “sexual orientation.”
More specifically to Ms. Hively, “[a]ny discomfort, disapproval, or job decision based on the fact that [she] dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.” And that, according to the main opinion, falls within Title VII’s prohibition against sex discrimination. In essence, given that sexual orientation includes aspects of sexuality, and particularly in light of other judicial and cultural developments that they found compelling, the five-judge group found a putative “common sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.”
Posner’s Concurrence – New Times, New Title VII!
Judge Posner’s concurring opinion is disturbingly expansive, if not outright legislative in approach. He first casts statutory interpretation as coming within three potential “flavors.” These are original meaning, interpretation by unexpressed intent, and fresh meaning. Judge Posner opined that Title VII invites the last method, particularly since it is “now more than half a century old,” and warrants updates for “vitality and significance” particularly since the present “differs markedly from the era in which the Act was enacted.” He thus found no trouble finding that “sex” now connotes both gender and sexual orientation.
In Judge Posner’s expressed view, “today ‘sex’ has a broader meaning than the genitalia you’re born with.” Further, “[t]he position of a woman being discriminated against on account of being a lesbian is thus analogous to a woman’s being discriminated against on account of being a woman. That woman didn’t choose to be a woman; the lesbian didn’t choose to be a lesbian.” He thus views both as worthy of Title VII protection, especially since “homosexuality is nothing worse than failing to fulfill stereotypical gender roles.”
Nevertheless, Judge Posner recognized that Hively’s sex is female, not “lesbian”; the latter term refers to her sexual or romantic attraction, not a physical sex identifier. In his view, a broader understanding of the word “sex” in Title VII than the original understanding is thus covered in order for sexual orientation to be covered. And given that “[w]e now understand [homosexuals] are normal in the ways that count” (including many homosexual people he listed by name as contributing meaningfully to society), he found that a compelling social interest exists in protecting homosexuals from discrimination and therefore justifies an “admittedly loose interpretation of the word ‘sex’ in Title VII.” In short, the legal interpretation is based on the notion that “we live in a different era, a different culture.”
Another Concurrence – Sexual Orientation Includes Sex
In their concurrence, Judges Flaum and Ripple noted that a Title VII sex discrimination claim may be actionable even if sex is only a motivating factor, not the motivating factor. They then focused on Hively’s sexual orientation claim as presumably including both (a) her gender as a woman, as one factor, and (b) her sexual attraction to persons of the same sex, as another factor. Based on their conclusion that sex was a motivating factor in the college’s refusal to promote Hively, they found an actionable Title VII claim.
The Dissent – Respect Title VII’s Constraints and Settled Law
Joined by Judges Bauer and Kanne, Judge Sykes issued a dissenting opinion, calling the majority’s decision “momentous” that results in “a statutory amendment courtesy of unelected judges.” In their view, the correct approach here is to respect the constraints imposed on the judiciary through interpreting the statutory text “as a reasonable person would have understood it at the time of enactment,” not to infuse it with new or unconventional meanings or to update it based on changed culture.
The dissent critiqued Judge Posner’s quick readiness to employ “judicial interpretive updating.” This is the role of the legislature, not the judiciary in American democracy. The dissenting judges reached this conclusion via a thorough legal analysis including the following areas.
First, as Judge Sykes wrote, Title VII contains a list of protected classifications, which does not include “sexual orientation.” The judiciary’s interpretation of the list has been stable for decades, with all federal appellate circuits recognizing that sexual orientation is distinct from sex discrimination. But the five-judge opinion reaches the polar opposite conclusion by making sexual orientation discrimination legally equivalent to sex discrimination.
Second, in accordance with fundamental canons of statutory construction, words are to be interpreted as “taking their ordinary, contemporary, common meaning.” (Hively slip op. at 46, quoting Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 8876 (2014)). According to dictionary definitions, “sex” reflects a biological distinction between male and female, in accordance with reproductive function, not including any concept of sexual orientation toward other persons. Stated differently, “sex” is not synonymous with “sexual orientation.” The dissent thus determined that such words “plainly describe different traits” with “separate and distinct meanings” for each characteristic. The dissent then concluded that “[b]ecause sexual-orientation discrimination is not synonymous with sex discrimination in ordinary usage, Title VII does not prohibit sexual-orientation,” neither expressly nor by fair implication.
Third, the dissent cited extensive federal, state, and local laws, all of which reflect a distinction between sex discrimination and sexual orientation discrimination. Based on such information, “this uniformity of usage is powerful objective evidence that sexual-orientation discrimination is broadly recognized as an independent category of discrimination, and is not synonymous with sex discrimination.”
Fourth, the dissent disagreed that sexual orientation discrimination is necessarily based on a person’s sex, either in whole or in part:
An employer who refuses to hire homosexuals is not drawing a line based on the job applicant’s sex. He is not excluding gay men because they are men and lesbians because they are women. His discriminatory motivation is independent of and unrelated to the applicant’s sex. Sexism and homophobia are separate kinds of prejudice that classify people in distinct ways based on different immutable characteristics. Simply put, sexual-orientation discrimination doesn’t classify people by sex; it doesn’t draw male/female distinctions but instead targets homosexual men and women for harsher treatment than heterosexual men and women.
(Hively slip op. at 51.) The dissent thus asserted that the majority erroneously blurred these two distinct categories. Such approach denies the reality that sex and sexual orientation are different traits, and that classifying people by sexual orientation is not the same as doing so by sex.
The dissent further took issue with Judge Flaum’s concurrence, by noting that the employer’s alleged motivation here was only based on Hively’s sexual orientation, not on her sex: “This attempt to conceptually split homosexuality into two parts – a person’s sex and his or her sexual attraction to persons of the same sex – doesn’t make sexual-orientation actionable as sex discrimination.” (Hively slip. op. at 56 n.5.)
Fifth, the dissent squarely rejected the main opinion’s reliance on Loving v. Virginia, a U.S. Supreme Court decision that invalidated Virginia’s miscegenation statutes on equal protection grounds. According to Judge Sykes’ analysis, these laws are inherently racially discriminatory, premised on invidious ideas about white supremacy and racial classifications. On the other hand, “sexual-orientation discrimination . . . is not inherently sexist. No one argues that sexual-orientation discrimination aims to promote or perpetuate the supremacy of one sex.” (Hively slip. op. at 58.)
Sixth, the dissent also criticized the main opinion’s reliance on sex stereotyping cases like the U.S. Supreme Court’s Price Waterhouse vs. Hopkins decision. In their view, such cases do not mandate recognition of a sexual orientation claim under Title VII. Rather, the Hopkins case fundamentally involved a woman who was treated differently because she was a woman. While sex stereotyping apparently played a role in her discriminatory treatment (i.e., she was not feminine “enough”), her adverse treatment was ultimately because of her sex. In this case, however, Hively’s adverse treatment was based on her sexual orientation, not her sex itself – indeed, regardless of her sex.
Seventh, the dissent circled back to the importance of stare decisis, stating that “the foundational assumptions of the rule of law and due regard for the prudential virtues of stability, reliability, and predictability should inspire some caution here.” (Hively slip. op. at 67-68.) The dissent then concluded that the majority’s expansion of Title VII protection is “entirely judge-made,” based on an arrogation of power and contrary to our country’s constitutional structure. Judge Sykes closed her dissent on a compassionate note, allowing that justice may demand a different result for Hively’s allegedly unfair treatment - but from the U.S. Congress, not the federal judiciary.
Applying Hively to Other Employers and Employees.
What does Hively portend for other employers and employees? The U.S. Supreme Court may well decide whether to side with the majority of Seventh Circuit judges (per one or more rationales as stated in their three distinct written opinions) or to affirm the opposite stance of all other federal appellate courts. The U.S. Congress could act as well, affirmatively including or rejecting the term “sexual orientation” in Title VII’s list of protected classifications.
Many state and local laws already identify sexual orientation expressly as a protected class, for employment as well as housing and other purposes. Churches, religious educational institutions, and other faith-based organizations may seek exemption from such laws, however, based on their sincerely held religious beliefs about sexuality, such as the Bible's mandate for one-man/one-woman marriage and prohibition against adultery. This protection is grounded in First Amendment rights of religious liberty, freedom of speech, and freedom of association, as well as their state constitutional counterparts. Sincerely held religious beliefs thus likely will continue to clash with developing cultural beliefs about sexual orientation - and increasing government protections.
Religious employers’ arguments for exemption from anti-discrimination laws generally fall into the following three categories based on their religious liberty interests: (a) a “bona fide occupational qualification,” or BFOQ, for certain jobs (e.g., a hospital chaplain or religious education teacher); (b) the “ministerial exception,” as recognized by the U.S. Supreme Court’s 2012 Hosanna-Tabor Evangelical Lutheran Church & School. v. EEOC decision, and applicable only to properly designated “ministers”; and (c) the federal Religious Freedom Restoration Act and state counterparts, which require a balancing of government interests against religious interests at stake. The availability of these exemptions may depend on the extent of an employer’s religious nature, whether as an organization or in job-specific ways, as well as the extent of governmental deference accorded to religious liberty interests.