Labor & Employment Developments Blog

On Tuesday, the Seventh Circuit sitting en banc announced its decision in Hively v. Ivy Tech Community College of Indiana, creating a Circuit split and setting the stage for a potential Supreme Court battle over the scope of Title VII. Kimberly Hively, who is openly gay, began teaching as a part-time adjunct professor at the South Bend campus of Ivy Tech Community College in 2000. Since that time she had applied several times for a full-time position but was never hired. When her part-time contract was not renewed in 2014, Hively looked to take action against the college, believing she was being discriminated against due to her sexual orientation. After filing a charge with the Equal Employment Opportunity Commission, Hively took the college to court alleging a violations of her rights under Title VII of the Civil Rights Act.

Title VII prohibits discrimination by employers based on race, color, color, religion, sex, and national origin, but sexual orientation is not specifically mentioned. For some, this conspicuous exclusion means the deathblow to cases like Hively’s. Just last month, the Eleventh Circuit affirmed the dismissal of a similar case (Evans v. Georgia Regional Hospital, Charles Moss, et al.), holding to precedent that “discharge for homosexuality is not prohibited by Title VII.” The Seventh Circuit, however, went in a different direction. The majority drew inspiration from the Supreme Court’s decision in Oncale v. Sundowner Offshore Servs., where the Court held that Title VII covered sexual harassment inflicted by a man on a male victim. “We see no justification,” the Supreme Court said, “in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII.” The Seventh Circuit accepted two arguments in support of Hively’s claim and found that discriminating on the basis of sexual orientation was included within Title VII’s prohibition against sex discrimination. Using the comparative method, Hively argued she was discriminated against as compared to a man in the same situation (here, being married to, living with, or dating a woman). Had she been a man and all else was the same, she argues that she would not have been treated the same way. Under the associational theory which relies on the Supreme Court decision in Loving v. Virginia, Hively argued the college’s action denies her of her protected right to associate intimately with a person of the same sex. Under this approach, Hively was being discriminated against on the basis of her chosen partner’s sex. Placing its decision within the context of the recent Supreme Court decisions upholding same-sex marriage, the Seventh Circuit found that an employee discriminated against based on sexual orientation is able to put forth a case of sex discrimination for Title VII purposes. 

Judge Richard Posner, in a concurring opinion, chose to be more direct. In a “more straightforward” opinion that is sure to draw the attention (and perhaps criticism), Judge Posner writes that this case may call for “judicial interpretive updating,” in which judges bring fresh meaning into a legislative provision from a long-passed act. Noting that “sex” has a broader meaning today than at the time of Title VII’s passage, he suggests that a new interpretation is needed, updated to the present day. Referencing the passage of the Civil Rights Act in the 1960’s, Judge Posner concludes “We should not leave the impression that we are merely obedient servants of the 88th Congress, carrying out their wishes. We are not. We are taking advantage of what the last half century has taught.” Jurists proscribing to a more originalist understanding of statutory interpretation may disagree.

Given that many states and local jurisdictions already provide protections based on sexual orientation, this decision may not have much of an immediate impact on employers. But given the controversy surrounding this issue and the latest Circuit split, this has all the ingredients of a high-profile Supreme Court case, which could potentially change Title VII’s application across the nation.