Big Victory for LGBT Rights: Hively v. Ivy Tech

In recent years, the lesbian, gay, bisexual, and transgender community has gained many civil rights. Yet people continue to be fired, demoted, or treated differently at work because of their gender identities or sexual orientation. Until last week, however, no appellate court had ever ruled that the Civil Rights Act protects LGBT individuals from employment discrimination.

On April 4, the Seventh Circuit granted a significant victory for LGBT rights. In a 8-3 en banc decision in Hively v. Ivy Tech Community College, the court held that Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on their sexual orientation. By overruling precedent and departing from decisions issued by other appellate courts, the decision may set the stage for the Supreme Court to rule on the issue.

The case involves Professor Kimberly Hively, who alleges that Ivy Tech Community College declined to promote her and ended her part-time teaching contract because she is lesbian. Title VII of the Civil Rights Act makes it illegal for an employer to discriminate against an individual “because of such individual’s race, color, religion, sex, or national origin.” But the law does not explicitly ban discrimination on the basis of sexual orientation.

The Seventh Circuit held that discriminating on the basis of sexual orientation is a type of sex discrimination. Writing for the majority, Chief Judge Diane Wood stated, “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.” Notably, five of the eight judges who signed the majority opinion were appointed by Republican presidents. The court remanded to a district court to decide whether discrimination occurred in Professor Hively’s specific case.

At its core, the issue pits two different views of statutory interpretation against each other: whether judges must consider the intentions of the Congress that drafted a statute or whether they can infer an intention that might not have been considered when a law was drafted. The Seventh Circuit noted how courts have broadly interpreted Title VII over the years. In particular, the court cited a 1989 case, Price Waterhouse v. Hopkins, where the Supreme Court held that sex stereotyping, or discriminating against people because they do not conform to gender stereotypes, is a form of sex discrimination. Chief Judge Wood stated that being not heterosexual is “the ultimate case of failure to conform to the female stereotype.” The court’s reasoning maps onto a 2015 interpretation of Title VII by the Equal Employment Opportunity Commission, which said, “Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.”

The immediate effects of the decision could be minimal. The Seventh Circuit has jurisdiction over three states—Illinois, Indiana, and Wisconsin—but both Illinois and Wisconsin already have state-wide legislation forbidding discrimination based on sexual orientation and 18 cities in Indiana also ban it. However, 28 other states still do not ban discrimination based on sexual orientation.

By creating a circuit split—a disagreement between different appellate courts—Hively opens a path for the issue to reach the Supreme Court. Ivy Tech does not plan to appeal the decision, but many commentators say the Supreme Court is likely to resolve the issue soon. While other circuit courts all have held that Title VII does not cover sexual orientation, judges have expressed misgivings about the soundness of those decisions. Two other cases are far along in the appeals process: within the last month, the Eleventh Circuit and Second Circuit both ruled in similar cases that sexual orientation is not covered by Title VII. A further question, as Joshua Matz notes at Take Care Blog, is what position the Trump Administration will take on civil rights employment protections for LGBT individuals.

The decision may also create an opening for courts to extend civil rights protections for LGBT individuals in other areas. Civil rights litigation to protect housing rights is often based on the reasoning used in the employment context. Given the current Congress and Administration, courts will likely be the front line, and Hively provides judges with an important line of reasoning to extend more civil rights protections to LGBT individuals.

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Rebecca Shafer is a 2L at Harvard Law School. At HLS, she is an online content editor with CR-CL, a member of the Board of Student Advisers, and a student advocate in the Veterans Law and Disability Benefits Clinic. Before law school, Rebecca managed a fellowship program for journalists and scholars at the think tank New America. Prior to that, she taught middle school reading for three years through Teach For America. She holds a B.A. in English and creative writing from the University of Michigan.

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