Federal Appeals Court Reluctantly Rejects Expanding Existing Civil Rights Law To Cover Sexual Orientation

Jim Burroway

July 28th, 2016

The Seventh Circuit Court of Appeals in Chicago has reluctantly upheld a lower court ruling which held that sex discrimination protections found in Title VII of the Civil Rights Act of 1964 cannot be extended to include sexual orientation.

The case was filed by Kimberly Hively, a former teacher at Ivy Tech Community College in South Bend, Indiana, who filed a grievance with the Equal Employment Opportunity Commission (EEOC) charging that she had been blocked from full time employment because of her sexual orientation. When she exhausted her appeals with the EEOC, she filed a lawsuit in Federal District Court. The college countered that Title VII doesn’t apply to sexual orientation claims, and the court agreed.

The Appeals Court decision, written by Judge Ilana Rovner and joined by Judge William Bauer, shows that the court didn’t like issuing the decision that it did (PDF: 347KB/42 pages). “This panel could make short shrift of its task and affirm the district court opinion by referencing two cases (released two months apart), in which this court held that Title VII offers no protection from nor remedies for sexual orientation discrimination,” wrote Rovner. However, she wrote that the court was not only bound by those two previous decisions, but many others as well. “Our precedent has been unequivocal in holding that Title VII does not redress sexual orientation discrimination. That holding is in line with all other circuit courts to have decided or opined about the matter.”

That was page six. The remainder of the 42-page document continued to defend the ruling against “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act”:

For although federal law now guarantees anyone the right to marry another person of the same gender, Title VII, to the extent it does not reach sexual orientation discrimination, also allows employers to fire that employee for doing so. From an employee’s perspective, the right to marriage might not feel like a real right if she can be fired for exercising it. Many citizens would be surprised to learn that under federal law any private employer can summon an employee into his office and state, “You are a hard‐working employee and have added much value to my company, but I am firing you because you are gay.” And the employee would have no recourse whatsoever — unless she happens to live in a state or locality with an anti‐discrimination statute that includes sexual orientation. More than half of the United States, however, do not have such state protections. …Moreover, the truth of this scenario would also apply to perceived sexual orientation. And so, for example, an employer who merely has a hunch that an employee is gay can terminate that employee for being gay whether or not she actually is. And even if the employer is wrong about the sexual orientation of the non‐gay employee, the employee has no recourse under Title VII as the discharge still would be based on sexual orientation.

…As things stand now, however, our understanding of Title VII leaves us with a somewhat odd body of case law that protects a lesbian who faces discrimination because she fails to meet some superficial gender norms — wearing pants instead of dresses, having short hair, not wearing make up — but not a lesbian who meets cosmetic gender norms, but violates the most essential of gender stereotypes by marrying another woman. We are left with a body of law that values the wearing of pants and earrings over marriage. It seems likely that neither the proponents nor the opponents of protecting employees from sexual orientation discrimination would be satisfied with a body of case law that protects “flamboyant” gay men and “butch” lesbians but not the lesbian or gay employee who act and appear straight. This type of gerrymandering to exclude some forms of gender‐norm discrimination but not others leads to unsatisfying results.

Despite the policy paradox set up by current law, Rovner held that the law, coupled with a large body of previous court decisions, is the law. It also noted that “Congress has time and time again said ‘no,’ to every attempt to add sexual orientation to the list of categories protected from discrimination by Title VII.” Rovner concluded:

Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it, (see Baldwin, 2015 WL 4397641 at **5,10); many of the federal courts to consider the matter have stated that they do not condone it (see, e.g., Vickers, 453 F.3d at 764‐65; Bibby, 260 F.3d at 265; Simonton, 232 F.3d at 35; Higgins, 194 F.3d at 259; Rene, 243 F.3d at 1209, (Hug, J., dissenting); Kay, 142 F. Appʹx at 51; Silva, 2000 WL 525573, at *1); and this court undoubtedly does not condone it (see Ulane, 742 F.2d at 1084). But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent, and therefore, the decision of the district court is AFFIRMED.

Judge Kenneth Ripple also joined the ruling, but not the extended discussion beyond page 9.

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