Last week, in the case of Hively v. Ivy Tech, the Seventh Circuit Court of Appeals held that Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of sexual orientation.
The plaintiff, Kimberly Hively, is an openly gay college professor who worked as a part-time adjunct professor at Ivy Tech Community College in Valparaiso, Indiana. She applied unsuccessfully for several full-time positions at Ivy Tech from 2009 to 2014, and then in 2014 Ivy Tech did not renew her part-time contract. Hively believed she was being discriminated against because of her sexual orientation, and sued Ivy Tech alleging violations of Title VII of the Civil Rights Act of 1964, which prohibits employers subject to the law from discriminating on the basis of a person’s “race, color, religion, sex, or national origin … .” 42 U.S.C. § 2000e-2(a).
Ivy Tech argued that Title VII does not protect against discrimination based on sexual orientation. The district court agreed, and dismissed the complaint. On appeal, the Seventh Circuit affirmed, but also noted that they were bound by precedent that could be interpreted to conflict with evolving Supreme Court jurisprudence. The full Seventh Circuit voted to hear the case en banc, and reversed, holding 8-3 that “discrimination on the basis of sexual orientation is a form of sex discrimination,” breaking with holdings of other federal circuits and setting the stage for possible Supreme Court review.
The court held that sexual orientation discrimination is not a newly protected category of discrimination, but rather a subset of discrimination based on sex. It relied on three related reasons for this conclusion. First, the Supreme Court held in Price Waterhouse v. Hopkins that sex stereotyping is sex discrimination. The Seventh Circuit reasoned that because the “ultimate case of failure to conform to the female stereotype” is having romantic relationships with women instead of men, Ivy Tech was alleged to have discriminated against Hively for failing to conform to this sex stereotype. Second, Title VII bars discrimination “because of sex,” and if Hively were a man in a relationship with a woman, she would not face the same discrimination. Third, in Loving v. Virginia, the Supreme Court held that discrimination against a person who associates with a different race is discriminating on the basis of race. The Seventh Circuit applied the same logic to Hively’s case, reasoning that discriminating against a woman for being in a relationship with another woman is discrimination on the basis of sex.