A federal appeals court on Tuesday ruled that discrimination against employees on the basis of sexual orientation violates the Civil Rights Act, in what was hailed as a landmark decision by gay rights advocates who have fought for years to expand workplace protections.
The opinion from the U.S. Court of Appeals for the Seventh Circuit, overturns an earlier ruling by a three-judge panel of the court just a year before.
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That decision upheld the dismissal of a discrimination lawsuit by an openly lesbian woman who had sued after she was denied faculty positions at the community college where she taught. The ruling came from the court sitting en banc — that is, all the judges of the court heard the case, rather than a selected panel of them.
Other federal appeals courts have similarly ruled that the Civil Rights Act does not include protections for gay or bisexual employees. Last month, the U.S. Court of Appeals for the Eleventh Circuit issued a decision along those lines, although that case may also be reviewed en banc.
In its divisive 8-3 ruling Tuesday, the Seventh Circuit majority took a different view of how to interpret the term "sex" in Title VII of the Civil Rights Act, which prohibits the denial of employment opportunities on the basis of "race, color, religion, sex, or national origin."
Writing for the majority, Chief Judge Diane Wood (pictured below) rejected the contention by defendant Ivy Tech Community College of Indiana that the term should be interpreted narrowly because previous legislative proposals to amend Title VII to add the words "sexual orientation" have not gained traction in Congress.
"Many of our sister circuits have also noted this fact," Wood wrote. "In our view, however, it is simply too difficult to draw a reliable inference from these truncated legislative initiatives to rest our opinion on them. The goalposts have been moving over the years, as the Supreme Court has shed more light on the scope of the language that already is in the statute: no sex discrimination."
Former Ivy Tech adjunct professor Kimberly Hively, represented by the Lambda Legal Defense & Education Fund, advanced twin arguments before the court: first, that all else being equal, she would have been treated differently if she was a man in a relationship with a woman; and that her rights to associate intimately with a person of the same sex are protected under Supreme Court precedents beginning with Loving v. Virginia.
The en banc panel found that both avenues ended up with an interpretation of the language in the Civil Rights Act that bars sexual orientation-based discrimination.
"The logic of the Supreme Court's decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line," Wood wrote.
The broader interpretation of the statute drew a sharp-tongued rebuke by three of the circuit's judges. Judge Diane Sykes (pictured left) who was one of the jurists on President Donald Trump's shortlist for the Supreme Court vacancy, lambasted the "momentous" decision as an example of judges going far outside the bounds of the law to get to a desired result.
"If Kimberly Hively was denied a job because of her sexual orientation, she was treated unjustly," wrote Sykes, who was joined by Circuit Judges William Bauer and Michael Kanne. "But Title VII does not provide a remedy for this kind of discrimination. The argument that it should must be addressed to Congress."
"The court's new rule is entirely judge-made; it does not derive from the text of Title VII in any meaningful sense," Sykes continued.
By contrast, Judge Richard Posner wrote in concurrence that the majority should have more boldly declared that the law needed an updated interpretation in light of changing times. "Title VII of the Civil Rights Act of 1964, now more than half a century old, invites an interpretation that will update it to the present, a present that differs markedly from the era in which the Act was enacted," Posner wrote.
Ivy Tech was represented in the litigation by Barnes & Thornburg partner John R. Maley, who argued the case before the en banc panel, did not respond to an email seeking comment.
In a statement, Ivy Tech spokesman Jeff Fanter said school policy specifically bars discrimination based on sexual orientation. Ivy Tech does not intend to seek U.S. Supreme Court review, he said.
"The college denies that it discriminated against the plaintiff on the basis of her sex or sexual orientation and will defend the plaintiff's claims on the merits in the trial court," said Fanter, Ivy Tech's senior vice president of communication and marketing.
Greg Nevins, who argued for Hively, issued a statement Tuesday calling the decision a "gamechanger."
"In many cities and states across the country, lesbian and gay workers are being fired because of who they love," Nevins said. "But, with this decision, federal law is catching up to public opinion."
Kelly Dermody, co-chair of the employment practice at Lieff Cabraser Heimann & Bernstein, in an email called it a "common sense conclusion" that it is unlawful under the Civil Rights Act "to treat a person differently because the gender of their romantic partner(s) does not fit the sex stereotype for their gender."
"In fact, this is the only logical conclusion one can draw given the way in which gender role expectations animate anti-gay conduct," she added.
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Ben Hancock
Ben Hancock is the Data Editor for ALM Media and Law.com. He is based in San Francisco.
