Landmark Gay Bias Ruling May Move Issue Closer to High Court

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By Kevin McGowan

A federal appeals court for the first time has ruled that Title VII of the 1964 Civil Rights Act prohibits sexual orientation discrimination. The “groundbreaking” decision creates a circuit split that could pave the way for U.S. Supreme Court review ( Hively v. Ivy Tech Comty, Coll. of Ind. , 2017 BL 110393, 7th Cir., No. 15-1720, en banc decision 4/4/17 ).

The full U.S. Court of Appeals for the Seventh Circuit April 4 ruled Title VII’s ban on sex discrimination precludes employers from discriminating against lesbian and gay workers based on their sexual orientation. With the 8-3 ruling, the Seventh Circuit becomes the only federal appeals court to hold Title VII covers sexual orientation bias.

The Seventh Circuit overruled its own precedent and broke from the federal courts’ traditional view that Title VII’s sex discrimination ban isn’t intended to protect workers against sexual orientation bias.

The decision makes it “highly likely” the Supreme Court would grant review to resolve if Title VII prohibits bias based on sexual orientation, said J. Randall Coffey, a partner with Fisher & Phillips in Kansas City, Mo., who represents employers.

It’s “incredibly important” that a federal appeals court “finally adopted” the “reasonable interpretation” that Title VII prohibits sexual orientation bias, said Sarah Warbelow, legal director of the Human Rights Campaign, an LGBT advocacy group in Washington.

But the Supreme Court often allows legal disputes to “percolate” among the federal appeals courts before granting review, Warbelow told Bloomberg BNA April 5. It’s “really hard to anticipate” if or when the justices might take up the Title VII issue, Warbelow said.

In either case, Ivy Tech Community College, the employer that lost before the Seventh Circuit, won’t be providing the vehicle for high court review, a college spokesman said. Ivy Tech “respects and appreciates the opinions rendered” by the Seventh Circuit judges and “does not intend to seek Supreme Court review,” the spokesman said in an April 5 email to Bloomberg BNA.

The college denies it discriminated against Kimberly Hively, the lesbian teacher who sued under Title VII, based on either her sex or sexual orientation. The school will defend itself before a trial court, the spokesman said.

Next Stop: Eleventh Circuit

Shannon Minter, legal director for the National Center for Lesbian Rights, said the Seventh Circuit’s ruling will influence other federal appeals courts currently considering Title VII and sexual orientation.

The first stop will be the Eleventh Circuit, said Gregory Nevins, a senior attorney with Lambda Legal Education and Defense Fund who represented Hively.

“We’re going to take” the Seventh Circuit decision “on a test drive” to see if it persuades the full Eleventh Circuit to review the Title VII question, Nevins told Bloomberg BNA April 5.

Three-judge panels in the Eleventh and Second Circuits both recently held Title VII doesn’t prohibit sexual orientation bias, saying they were constrained by circuit precedents.

But each case produced a separate opinion suggesting the full appeals court should re-examine its precedent and that Title VII should be read to prohibit gay bias.

Nevins is asking the full Eleventh Circuit to review a lesbian hospital worker’s claim that her employer violated Title VII by discriminating because of her sexual orientation.

The Eleventh Circuit should “do the responsible thing” and vote to re-examine its precedent in light of the Seventh Circuit’s ruling, Nevins said.

More courts are taking seriously LGBT discrimination claims under Title VII and re-examining their prior assumptions that the federal law doesn’t reach sexual orientation, Minter said.

The Seventh Circuit decision “opens the door to a new era” for LGBT workers under federal sex discrimination law, Minter said in an April 5 email to Bloomberg BNA.

The court “deserves credit for rejecting the tortured rationales of older decisions and undertaking a principled analysis,” based partly on prior Supreme Court opinions, that Title VII “must be broadly construed to prohibit the full range of sex-based discrimination,” Minter said.

EEOC’s Position Cited

Writing for the Seventh Circuit, Judge Diane P. Wood said the court’s ruling “must be understood against the backdrop” of Supreme Court decisions addressing sexual orientation more broadly, as well as its employment discrimination cases.

Those rulings, including the 2015 decision recognizing a constitutional right to same-sex marriage, reflect societal changes about the meaning of sex that can’t be ignored, the court said.

The appeals court also cited the Equal Employment Opportunity Commission’s 2015 administrative decision in Baldwin v. Foxx, which held in a federal sector discrimination case that Title VII’s sex bias ban necessarily prohibits discrimination based on sexual orientation.

“It would require considerable gymnastics to remove the ‘sex’ from ‘sexual orientation,’ ” Wood wrote.

Current and former EEOC officials applauded the decision and the agency’s advocacy role.

It’s “a great day for civil rights” that “illustrates the role of good lawyering,” said P. David Lopez, a former EEOC general counsel now a partner with Outten & Golden LLP in Washington.

Private lawyers representing Hively and the EEOC lawyers who supported her framed a winning argument for a “contemporary understanding” of sex discrimination, Lopez said.

Some critics in the past said the EEOC was overreaching by advocating a Title VII reading at odds with most federal court rulings, said Lopez, who served as general counsel until last December.

“We’ll see how the dominoes fall” in the other appeals courts currently considering if Title VII protects gay and lesbian workers, Lopez said.

“In an exacting opinion, the full Seventh Circuit has come to the same conclusion that the EEOC has—that discrimination on the basis of sexual orientation is, by definition, sex discrimination,” Acting EEOC Chair Victoria Lipnic (R) said in an April 5 email to Bloomberg BNA.

EEOC Commissioner Chai Feldblum (D), who long has argued that bias based on sexual orientation or gender identity is sex discrimination under Title VII, commended the decision.

“I look forward to the other circuits following the compelling, intelligent reasoning of the Seventh Circuit,” Feldblum said during an EEOC public meeting April 5.

Dissent: Inappropriate Legislating

Judge Diane S. Sykes dissented from the decision, saying the majority abused its judicial power by amending Title VII like a legislature. Sykes was joined by Judges William J. Bauer and Michael S. Kanne.

“We are not authorized to infuse the text with a new or unconventional meaning or to update it to respond to changed social, economic or political conditions,” Sykes wrote.

Lambda Legal Defense and Education Fund represented Hively. Barnes & Thornburg LLP represented Ivy Tech.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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