[By Alison Frankel]
As you’ve probably heard, Judge Wood wrote an historic opinion Tuesday night, holding that the Civil Rights Act of 1964 prohibits workplace discrimination against gays and lesbians. The 7th Circuit overwhelmingly backed former adjunct professor Kimberly Hively’s right to sue her former employer, Ivy Tech Community College, for violating federal anti-discrimination law. Eight 7th Circuit judges joined Wood’s majority opinion, siding with Hively and her lawyers at Lambda Legal. Only three 7th Circuit judges dissented.
The 7th Circuit is the first court to rule en banc on whether federal law protects gay and lesbian employees. But it almost certainly won’t be the last – and that’s why Judge Wood’s opinion is so shrewd. By grounding the opinion in U.S. Supreme Court precedent, insisting that the 7th Circuit is merely interpreting the statute Congress wrote and explaining why two different Lambda theories lead to the same conclusion, Judge Wood is giving the next court to look at this issue all kinds of justifications to go along with the 7th Circuit.
Ivy Tech has already announced that it will not seek Supreme Court review of the 7th Circuit’s en banc decision. But the issue of whether Title VII of the Civil Rights Act prohibits workplace discrimination against gays and lesbians is still red hot in other federal circuits.
Lambda lawyer Gregory Nevins, who argued for Kimberly Hively at the 7th Circuit, told me Wednesday that Lambda is about to notify the 11th Circuit of the 7th Circuit’s en banc holding. Lambda has asked the 11th Circuit to reconsider en banc a three-judge panel’s ruling last month in Evans v. Georgia Regional Hospital that Title VII does not cover discrimination on the basis of sexual orientation. (Nevins argued that case as well.)
There could also be an en banc request on the issue to the 2nd Circuit after its March 27 decision in Christiansen v. Omnicom Group. The 2nd Circuit panel said its binding precedent precludes a holding that Title VII protects gays and lesbians – but two members of the panel, including Chief Judge Robert Katzmann, said in a concurrence that it’s time for the entire 2nd Circuit to reconsider its precedent. (The 2nd Circuit revived Christiansen’s case on the theory that Omnicom engaged in impermissible gender stereotyping.)
Judge Wood’s majority opinion at the 7th Circuit acknowledged the foment in other federal circuits and anticipated what is likely to be the issue’s ultimate destination: “Notable in its absence from the debate over the proper interpretation of the scope of Title VII’s ban on sex discrimination is the United States Supreme Court,” she wrote.
So let’s look at how the judge girded the majority opinion for the poking and prodding it’s going to get from other courts. Significantly, Judge Wood spelled out clearly what the 7th Circuit majority is not doing: judicially “amending” Title VII to add sexual orientation to the law’s list of protected categories. “We must decide instead what it means to discriminate on the basis of sex, and in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex,” she wrote. “This is a pure question of statutory interpretation and thus well within the judiciary’s competence.” (Her restrictive definition of the court’s power contrasts with Judge Richard Posner’s concurrence in the case.)
Judge Wood explained how the Supreme Court’s own expanding view of sex discrimination informed the 7th Circuit’s analysis. Of particular note, she said, were the justices’ 1989 decision in Price Waterhouse v. Hopkins, which said employers may not discriminate against workers who don’t conform to sex stereotypes, and 1998 ruling in Oncale v. Sundowner Offshore Services, which said same-sex harassment is illegal. “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,” the judge wrote.
Lambda had suggested two alternative ways to look at whether discrimination on the basis of sexual orientation amounts to sex discrimination. One is what Judge Wood called the “tried-and-true comparative method in which we attempt to isolate the significance of the plaintiff’s sex to the employer’s decision.” The other is to look at the line of Supreme Court cases, beginning with 1967’s Loving v. Virginia, striking down prohibitions on intimate relationships.
Judge Wood’s opinion said either approach works. “Although the analysis differs somewhat, both avenues end up in the same place: sex discrimination,” she wrote.
The comparative method asks whether if Hively had been a man involved in a romantic relationship with a woman she would have experienced the same alleged discrimination by her former employer. Through that lens, the majority said, sexual orientation is the ultimate form of gender non-conformity. Hively’s case, in other words, “is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man),” the opinion said.
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“Any discomfort, disapproval or job decision based on the fact that the complainant - woman or man - dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex,” Judge Wood wrote, citing, in addition to Hopkins, long-ago Supreme Court cases that barred employers from treated men and women differently with respect to marriage and parenthood. “That means that it falls within Title VII’s prohibition against sex discrimination.”
In the more subtle Loving analysis, the majority opinion substituted same-sex relationships for the interracial relationship in the Loving case. If a plaintiff in a same-sex relationship experiences discrimination he or she would not have been subjected to in a heterosexual relationship, the majority said, “this reveals that the discrimination rests on distinctions drawn according to sex.”
To back that conclusion, Judge Wood pointed to another cluster of Supreme Court cases, this line striking down state and federal laws targeting gays and lesbians for disparate treatment. That line culminates, of course, in 2015’s Obergefell v. Hodges, which said same-sex couples have a constitutional right to marry.
Lambda’s Nevins told me Judge Wood’s multiple routes to the same conclusion will help his side going forward. “Each argument has its benefits,” he said. “Each will appeal to different judges in different ways.” The key holding from the 7th Circuit, in the majority opinion, Judge Posner’s concurrence and a separate concurrence from Judge Joel Flaum, is that sex discrimination encompasses sexual orientation discrimination. “Just because there is another common phrase by which we call this discrimination doesn’t mean it’s the only one,” he said.
I asked Nevins if he’s concerned that by the time this issue gets to the Supreme Court, Judge Neil Gorsuch will probably have taken Justice Antonin Scalia’s seat. With a laugh, he pointed out that Justice Scalia wrote the Supreme Court opinion in Oncale, the case concluding that, as a matter of statutory interpretation, Title VII protects employees from same-sex harassment. “If it is true that the motivation behind Judge Gorsuch’s nomination is that he is Scalia-like,” Nevins said, “then we will be A-OK.”