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(Reuters) - Under federal law as it exists right now in the United States, gay men and lesbians can marry their partners over the weekend and can be fired the following Monday for doing so, without any recourse under the Civil Rights Act.
But that may be about to change.
On Wednesday, the en banc 7th U.S. Circuit Court of Appeals will hear arguments in Hively v. Ivy Tech Community College, in which former Ivy Tech adjunct professor Kimberly Hively claims the college refused to allow her to interview for a full-time job and ultimately did not renew her contract because she is a lesbian. The case gives the 7th Circuit a historic opportunity to fix what three of its own judges have called “a jumble of inconsistent precedents” and a “confused hodge-podge of cases.” If the full appellate court sides with Hively and her lawyers from the Lambda Legal Defense and Education Fund, gays and lesbians will finally receive protection under federal law from workplace discrimination.
The Hively case spotlights a weird legal paradox. The federal law barring employment discrimination, Title VII of the Civil Rights Act, forbids employers from treating workers unequally on the basis of race, color, religion, sex or national origin. A plurality of justices on the U.S. Supreme Court said in 1989’s Price Waterhouse v. Hopkins that employers cannot discriminate against workers who don’t conform to sex stereotypes. Yet as a three-judge panel at the 7th Circuit explained last summer in its since-vacated Hively opinion, every federal appellate court to have considered the question of whether employers can discriminate based on workers’ sexual orientation has concluded that Title VII’s bar on sex discrimination doesn’t give redress to gays and lesbians.
The tension between those appellate rulings and the Supreme Court’s decision in Hopkins has left lower courts trying to figure out how to untwist actionable gender stereotyping claims from anti-gay discrimination for which workers don’t have a federal cause of action – an “elusive” dichotomy, according to 7th Circuit Judge Ilana Rovner.
“The opinions tend to turn circles around themselves because, in fact, it is exceptionally difficult to distinguish between these two types of claims,” Judge Rovner said in the Hively opinion vacated when the appellate court agreed to rehear the case en banc. “Discrimination against gay, lesbian, and bisexual employees comes about because their behavior is seen as failing to comply with the quintessential gender stereotype about what men and women ought to do — for example, that men should have romantic and sexual relationships only with women, and women should have romantic and sexual relationships only with men.”
Judge Rovner detailed some of the irrational contortions in decisions attempting to parse gender stereotyping from anti-gay discrimination. A federal judge in Buffalo, for instance, determined that a discrimination suit depends on a plaintiff’s actual sexual orientation: If a straight man were harassed with homophobic slurs, the judge said, he could bring a gender-stereotyping claim that would be considered an improper attempt, were it brought by a gay man, to bootstrap a workplace discrimination claim. Judge Rovner pointed out that by allowing gender stereotype suits while barring outright same-sex discrimination claims, courts have created “an uncomfortable result in which the more visibly and stereotypically gay or lesbian a plaintiff is in mannerisms, appearance, and behavior, and the more the plaintiff exhibits those behaviors and mannerisms at work, the more likely a court is to recognize a claim of gender nonconformity.” (I should admit that the 7th Circuit panel opinion also provided the ironic observation about gay marriage I used to open this piece.)
The Equal Employment Opportunity Commission concluded unequivocally in its 2015 ruling in Baldwin v. Foxx that workplace discrimination on the basis of sexual orientation is necessarily “sex-based,” so it falls under Title VII’s prohibition on sex discrimination. Employers can no more discriminate against gays and lesbians for whom they date or marry than it can against employees involved in interracial relationships, the EEOC said. Nor should employers be allowed to act against gay and lesbian employees based on their gender. If a straight man can put a photo of a woman on his desk, how can a lesbian have no redress under Title VII if she is fired for doing the exact same thing?
The 7th Circuit panel in the Hively case looked hard at the EEOC’s Baldwin opinion, which Judge Rovner and one of her panel colleagues, Judge William Bauer, seemed to agree with. The panel concluded it was bound by 7th Circuit precedent in a pair of cases from 2000 that held Title VII does not apply to discrimination based on sexual orientation, but Judges Rovner and Bauer seemed perfectly willing to overturn that precedent in the 7th Circuit’s en banc hearing. (Judge Kenneth Ripple, the third member of the Hively panel, did not join most of Judge Rovner’s opinion though he concurred with the judgment affirming the dismissal of Hively’s case.)
Lambda Legal lawyer Kenneth Upton told me Monday that Judge Rovner’s opinion gives the group hope for a big civil rights win. “I sense Judge Rovner was troubled by the fact her hands were tied,” he said. Upton also said the 7th Circuit, in the country’s heartland, is a good court to hear what he believes is the first en banc argument on whether Title VII gives gays and lesbians the right to sue for workplace discrimination.
Three-judge panels at the 5th and 2nd Circuits are also facing the question, Upton said, so ultimately, it will probably be up to the Supreme Court to provide an answer.
“Sexual orientation doesn’t have anything to do with employees’ ability to do their job,” Upton said. “It shouldn’t be a determiner of whether you should continue to be employed.”
Lambda’s Gregory Nevins will split Wednesday’s argument with EEOC lawyer Gail Coleman. I left phone messages for Ivy Tech counsel John Maley and Jason Clagg of Barnes & Thornburg but didn’t hear back.