Workplace Bias Against Gays Could Be Illegal, 7th Cir. Judges Hint

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By Michael J. Bologna

Nov. 30 — Discrimination based on sexual orientation might be prohibited by federal law, several Seventh Circuit judges suggested, raising hopes among gay rights advocates that the court is poised to fill a gap in the nation’s anti-bias laws ( Hively v. Ivy Tech Cmty. Coll., 7th Cir. en banc, No. 15-1720, oral argument 11/30/16 ).

Six of the 11 judges of the U.S. Court of Appeals for the Seventh Circuit questioned an Indiana employer’s assertion that Title VII of the 1964 Civil Rights Act offers no protection to a lesbian employee who said she was discriminated against because of her sexual orientation.

The judges, hearing oral arguments Nov. 30, expressed frustration with the employer’s strict interpretation of the plain language of the statute.

A critical question before the court is whether Title VII’s prohibition against discrimination on the basis of sex includes discrimination based on sexual orientation.

Title VII says nothing about protections for individuals based on sexual orientation, and Congress has declined to add sexual orientation as a protected class under the statute, John Maley, the attorney for the employer, Ivy Tech Community College, told the court.

But the panel peppered Maley with questions and viewpoints asserting a more expansive understanding of sex in the context of employment discrimination. The judges also pointed to the court’s authority to broaden the statute to adapt to changing social conditions.

“Constantly, judges are reinterpreting statutes in ways that are not consistent with the actual thinking of the people who enacted the statute,” Judge Richard Posner said. “Why isn’t this a perfect case for that?”

Validation of Baldwin v. Foxx?

Chai Feldblum, a commissioner with the Equal Employment Opportunity Commission who attended the session, saw the line of questioning as a hopeful sign that the court will adopt the agency’s position in Baldwin v. Foxx (E.E.O.C. 2015). In that case, the EEOC formally ruled for the first time that Title VII prohibits bias based on sexual orientation.

“Based on the questions I heard today, the judges of the Seventh Circuit Court of Appeals certainly understand the legal arguments made by the EEOC,” Feldblum told Bloomberg BNA following oral arguments. “The lawyer representing the employer in this case had a very hard time answering the very common sense questions posed to him today.”

Gregory Nevins, who argued on behalf of the college instructor, Kimberly Hively, expressed similar hope following the one-hour hearing in Chicago.

“We were very happy. They were very engaged,” Nevins told reporters. “It was clear that they understood exactly what our arguments were. So we are optimistic.” Nevins is director of the Workplace Fairness Program at the LGBT rights group Lambda Legal.

Hively sued Ivy Tech in 2014, alleging the school violated Title VII when it denied her full-time employment and promotions after she had been seen kissing her then-girlfriend. A federal district court dismissed Hively’s lawsuit, finding the statute doesn’t protect employees from discrimination based on sexual orientation.

A three-judge panel of the Seventh Circuit upheld that ruling in July, but Judge Ilana Diamond Rovner wrote a decision lamenting a “paradoxical legal landscape” in which gays and lesbians “can be married on Saturday and then fired on Monday for just that act.” Lambda Legal requested rehearing by the full court, triggering the arguments Nov. 30.

Discrimination ‘Plain and Simple.’

Most of the questioning emerged during Ivy Tech’s presentation to the court, but Maley, a partner in the Indianapolis office of Barnes & Thornburg LLP, was given little time to respond.

In one exchange, Rovner said there was a fundamental flaw in Ivy Tech’s reasoning that Title VII intended to treat heterosexuals and gays and lesbians differently with regard to workplace protections.

“If a woman would not be fired for dating a man, but would for dating a woman, why is that not just discrimination based on sex, plain and simple?” Rovner asked.

Judge Frank Easterbrook asked Maley to address the precedent established in Loving v. Virginia, 388 U.S. 1 (1967), the landmark U.S. Supreme Court decision that voided laws prohibiting interracial marriage. The drafters of the 14th Amendment may not have been thinking about interracial marriage when the amendment was written, but the protections became the basis for affirming such unions, he said.

“Here we have an employer’s ban on relations between a woman and a woman. Why isn’t that sex discrimination by exactly the reasoning of Loving?” Easterbrook said. “ Loving is raised by your adversary, and I notice your brief doesn’t mention it.”

Maley responded that Loving addressed constitutional issues, which can’t be translated into an interpretation of sex under Title VII. But Easterbrook and Judge Diane P. Wood quickly shot back “Why not?”—a question Maley wasn’t given a full opportunity to answer.

Frozen in Time

Posner listed a series of objections to Maley’s strict adherence to the plain language of Title VII.

“You seem to think that the meaning of the statute or the meaning of a constitutional provision is frozen on the day of enactment. Of course, that’s false, and Loving is an example,” he said. “In 1868 when the 14th Amendment was passed, they didn’t think they were creating a right to have interracial marriages. Similarly in 1964, the date of Title VII, that’s a long time ago in terms of how people thought about sex and particularly homosexuality. So you think we are bound by what people thought in 1964 in interpreting the statute more than a half-century later?”

Gender Stereotyping

Judge David F. Hamilton focused his questioning on Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), another landmark Supreme Court decision establishing that gender stereotyping is actionable as sex discrimination.

Price Waterhouse v. Hopkins seems to tell us it violates Title VII to discriminate against a woman because she looks gay and behaves outwardly as someone who is gay,” he said. “I have a hard time drawing a principled distinction between discrimination against someone for looking gay and being gay.”

Wood questioned whether Ivy Tech even believed the arguments it was making before the court. She noted that the school’s brief stated it deplores discrimination on the basis of sexual orientation, yet it continued to defend its right to engage in such discrimination.

“I’ll put that to one side,” she quipped. “I guess you are defending against the transaction cost of litigation.”

To contact the reporter on this story: Michael J. Bologna in Chicago at mbologna@bna.com

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

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