Academic journal article Harvard Law Review

Statutory Interpretation - Title VII - Seventh Circuit Holds Sexual Orientation Discrimination Is a Form of Sex Discrimination

Academic journal article Harvard Law Review

Statutory Interpretation - Title VII - Seventh Circuit Holds Sexual Orientation Discrimination Is a Form of Sex Discrimination

Article excerpt


Title VII of the Civil Rights Act of 1964 prohibits employment discrimination "because of ... sex." (1) Since Title VII's enactment, the Supreme Court has interpreted this guarantee expansively to prohibit both same-sex sexual harassment (2) and discrimination based on gender stereotypes. (3) Recently, in Hively v. Ivy Tech Community College, (4) an en banc Seventh Circuit built on these interpretations, ruling that sexual orientation discrimination is a form of sex discrimination cognizable under Title VII. (5) Hively's majority opinion and two concurrences present a diversity of interpretive approaches. Yet Judge Sykes, in dissent, was eager to characterize both Chief Judge Wood's majority opinion and Judge Posner's concurrence as similar forms of judicial self-aggrandizement. Such conflation is a mistake. Admittedly, reaching the Hively conclusion does require a court to apply Title VII to a set of facts unforeseen by the enacting Congress. However, unlike Judge Posner, Chief Judge Wood demonstrates how to reach the Hively conclusion while respecting the limits and responsibilities placed on courts in the context of interpreting Title VII.

Kimberly Hively was an openly lesbian, part-time adjunct professor at Ivy Tech Community College. (6) She submitted multiple applications for full-time employment, yet none were approved. (7) Instead, Ivy Tech decided against renewing her contract. (8) Hively filed a charge with the Equal Employment Opportunity Commission, alleging sexual orientation discrimination. (9) Receiving a right-to-sue letter, she filed a complaint in the U.S. District Court for the Northern District of Indiana. (10)

In response, Ivy Tech moved to dismiss the complaint for failing to state a claim. (11) District Judge Lozano granted the motion. (12) In dismissing the Title VII claim, Judge Lozano relied on Seventh Circuit precedent that held that "sex" discrimination was distinct from sexual orientation discrimination. (13) Accordingly, the latter could not give rise to a Title VII claim. (14)

The Seventh Circuit affirmed. (15) Writing for the panel, Judge Rovner agreed that circuit precedent mandated the dismissal of Hively's sexual orientation discrimination claim. (16) Yet Judge Rovner noted the difficulties presented by this state of law. (17) Ultimately, while Judge Rovner held that the panel was bound by stare decisis, she did so with the prescient observation that the "the writing [was] on the wall." (18)

The Seventh Circuit, sitting en banc, reversed and remanded. (19) Writing for the majority, (20) Chief Judge Wood pared down the path-breaking nature of the decision, describing the issue as a "pure question of statutory interpretation." (21)

Chief Judge Wood built her case using two approaches. Under the "comparative method" for discerning discrimination, she isolated only Hively's sex, and asked if a man in her position, that is a man in a relationship with a woman, would have been treated similarly. (22) With the answer in the negative, Chief Judge Wood found "paradigmatic sex discrimination." (23) Additionally, still under the "comparative method," she characterized the Court's "gender non-conformity line of cases" as having established cognizable forms of discrimination based on sex stereotypes. (24) Under this approach, Hively's failure to adhere to heterosexual norms was the "ultimate case of failure to conform to the female stereotype." (25)

Next, Chief Judge Wood adopted the "associational theory" of discrimination. (26) Drawing upon Loving v. Virginia (27) and two Title VII cases from sister circuits, (28) she affirmed the proposition 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. …

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