by Meganne Trela (Fall 2017)

The full Seventh Circuit Court of Appeals became the first federal appeals court to recognize sexual orientation as a protected class under Title VII in Hively v. Ivy Tech Community College of Indiana, 2017 WL 1230393 (7th Cir. 2017). This decision creates a split among the federal appellate courts – making it ripe for review by the U.S. Supreme Court. While this decision marks an important point in determining what rights are protected under Title VII, Illinois law specifically prohibits discrimination based on sexual-orientation under the Illinois Human Rights Act.

Under Title VII, it is illegal to discriminate against a person based upon their race, color, religion, national origin, or sex. Federal law does not specifically address sexual orientation. In this case, Kimberly Hively, an open lesbian, worked as a part-time adjunct professor at the South Bend, Indiana campus of Ivy Tech Community College. She unsuccessfully applied for full-time teaching positions with the college from 2009 through 2014. In 2013, Hively filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) against the college. In 2014, she was informed that her part-time contract was not renewed. After receiving a right to sue letter from the EEOC, Hively filed a lawsuit in federal court.

The district court granted the college’s motion to dismiss, holding that sexual orientation was not a protected class under Title VII. Hively appealed to the Seventh Circuit. In the majority opinion, authored by Chief Judge Diane Wood, the court explained that the issue was “a pure question of statutory interpretation” and required a determination of whether sexual orientation discrimination was a subset of prohibited sex discrimination.

In determining that sexual orientation discrimination was a subset of discrimination on the basis of sex, the court relied upon the U.S. Supreme Court’s decision in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998). In that case, the Supreme Court held that male-to-male sexual harassment was prohibited under Title VII. The Supreme Court in Oncale noted that statutory prohibitions often extend beyond the “principal evil to cover reasonably comparable evils.”

The Seventh Circuit used two theories in reaching its conclusion: (1) the comparative method; and (2) the associational theory. Under the comparative method, the court determines whether, holding all other factors constant except the plaintiff’s sex, she would have been treated in the same manner. In Hively’s case, she argued that if she had been a man married to a woman, the college would have promoted her. Looking to the Supreme Court’s “gender non-conformity” line of cases, the court noted that Hively “represents the ultimate case of failure to conform to the female stereotype,” viewing heterosexuality as the norm.

In addition, the court determined that the associational theory also supported a finding of prohibited discrimination under Title VII. The associational theory began under cases dealing with race discrimination, where cases heard by the Supreme Court, as well as the Second and Eleventh Circuits, held that discrimination based upon the race of someone’s associates violated Title VII. In finding the associational theory applicable to this case, the court reasoned that “[i]t is now accepted that a person who is discriminated against because of the protected characteristic of one with whom she associates is actually being disadvantaged because of her own traits.” Thus, discrimination based upon the sex with which one associates is violative of Title VII. The court further noted that to the extent there is a change in the “sex of one partner in a lesbian relation, the outcome would be different. This reveals that the discrimination rests on distinctions drawn according to sex.”

In a concurring opinion, Judge Posner suggested that the interpretation of Title VII, which was adopted more than fifty years ago, was due for a judicial interpretation that “will update it to the present, a present that differs markedly from the era in which the Act was enacted.” In a concurring opinion, Judge Flaum joined by Judge Ripple, noted that sexual-orientation discrimination constitutes discrimination on the basis of a person’s sex. To the extent Ivy Tech refused to hire Hively because she is a homosexual who is sexually attracted to women, the college would have allegedly discriminated against her, in part, because of her sex.

The dissenting opinion, authored by Judge Sykes and joined by Judges Bauer and Kanne, criticized the majority’s expansive reading of Title VII, arguing that the plain meaning of the term “sex” is biologically male or female. The dissent additionally argued that there are several federal and state statutes that specifically address certain forms of sexual-orientation discrimination, including the Violence Against Woman Act, the federal Hate Crimes Act, and the Illinois Human Rights Act. Based on the broad recognition     that sexual-orientation discrimination constitutes an independent category of discrimination, the dissent reasoned that it does not constitute sex discrimination. The dissent went on to criticize the use of the comparative method and associational theory, noting that the majority’s reliance on such theories was misconstrued or misplaced.

As the law stands currently in the Seventh Circuit, discrimination based on sexual orientation is prohibited by Title VII. This issue will likely come before the Supreme Court because a split among the circuits now exists. However, despite the federal law conflict, Illinois state law clearly prohibits sexual-orientation discrimination under the Illinois Human Rights Act. Questions regarding sexual-orientation discrimination or Title VII should be directed to one of our attorneys.