In a momentous decision earlier this month, a federal appellate court in Chicago became the highest court in the nation to rule that the 1964 Civil Rights Act protects employees from workplace discrimination based on sexual orientation. With an 8-3 majority, the Seventh U.S. Circuit Court of Appeals found that former Ivy Tech Community College teacher Kim Hively was wrongfully passed over several times for a full time position and later terminated on the basis that she is a lesbian.
The opinions of majority judges and the three dissenting judges in this case fell on either side of the important issue of statutory interpretation: should laws be interpreted strictly in the terms that were intended at the time they were written, or do courts have room to make the meaning of laws malleable for the sake of modern-day context? In the words of this particular case, does a bar on sex discrimination extend to include sexual orientation discrimination?
Title VII of the Civil Rights Act, the provision banning workplace bias, makes it illegal for an employer to “fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual…because of such individual’s race, color, religion, sex, or national origin.” While the provision does not explicitly mention sexual orientation, the court concluded that the community college’s actions adequately qualified as sex discrimination under Title VII. Why? Because the animus behind the discrimination was that Hively failed to act within the confines of a conventional gender stereotype, namely that women should only date men and men should only date women. “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 it falls within Title VII’s prohibition against sex discrimination.” “Hively represents the ultimate case of failure to conform to the female stereotype,” wrote chief judge Diane P. Wood for the majority, drawing a connection between Hively’s claim and that of other women who have been rejected for job opportunities in traditionally male-dominated fields, such as fire departments, construction, and policing.
Judge Diane Sykes, representing the dissent, conceded that Hively was discriminated against if she was denied a job because of her sexual orientation, but took issue with the majority’s reinterpretation of Title VII to include sexual orientation discrimination where there is no language to support the addition. Taking a hard-line stance on statutory interpretation, Sykes argued that the court was overstepping its judicial discretion by adding new meaning to Title VII because its longstanding meaning since adoption does not provide a remedy for Hively in this case. “In common, ordinary usage in 1964 — and now, for that matter — the word ‘sex’ means biologically male or female; [Title VII] does not also refer to sexual orientation… Not expressly (obviously), and not by fair implication either,” Sykes wrote.
In the past, federal courts have ruled differently on the issue, but as a judicial authority the Supreme Court has held a working definition of gender discrimination that may suggest a favoritism for “judicial interpretive updating,” as Judge Richard Posner called it. In related cases, the Supreme Court has considered workplace sexual harassment including same-sex sexual harassment, and harassment for failure to conform to gender stereotypes, as qualifying forms of sex discrimination. Gregory Nevins, an attorney for Hively, said the ruling “will go a long way in courts across the country,” as the decision does create precedent for lower courts in Illinois, Indiana, and Wisconsin to follow. But looking forward, will this change in precedent spread nationwide? With this Chicago appellate court being the first of its status to hold a ruling of this kind, it’s hard to say. What’s more, the decision comes only weeks after conflicting rulings from two other federal appeals courts, one in Atlanta and another in New York, that found there is no protection for employee discrimination on the basis of sexual orientation.
Hively’s case will return to the U.S. District Court in the Northern District of Indiana. In a statement that Ivy Tech will not seek Supreme Court review, a spokesman for the community college said the school “denies that it discriminated against the plaintiff on the basis of her sex or sexual orientation and will defend the plaintiff’s claims on the merits in the trial court.”
If you believe you have been a victim of discrimination or harassment in your capacity as an employee, please do not hesitate to call our office for a free legal consultation at (727) 786-5000 or fill out our case evaluation form on the Contact page of our website.