Wednesday, April 12, 2017

Hively v. Ivy Tech Community College: Some Lessons from the Majority Decision

The Seventh Circuit's en banc decision in Hively v. Ivy Tech Community College is the first decision by a federal court of appeals to hold that Title VII of the Civil Rights Act of 1964 protects individuals against discrimination based on sexual orientation. In this post, I focus on a few important points about the majority decision by Judge Diane Wood that help place Hively in context: 1) Title VII only prohibits sexual orientation discrimination that constitutes sex discrimination between men and women; 2) sex stereotyping violates Title VII because it discriminates between men and women; and 3) religious organizations with religious objections to homosexuality may be permitted by Title VII to discriminate against gay men and lesbians.

Title VII Only Prohibits Sexual Orientation Discrimination Rooted in Sex Discrimination Between Men and Women

The majority concluded that "discrimination on the basis of sexual orientation is a form of sex discrimination." Thus, Title VII does not prohibit sexual orientation discrimination per se. Rather, it prohibits sex discrimination, and sexual orientation discrimination is a subset of sex discrimination.

Although the majority suggests that sexual orientation discrimination is necessarily a form of sex discrimination, that seems to be a bit of an exaggeration. Rather, sexual orientation discrimination can be a form of sex discrimination. Most claims of sexual orientation discrimination are likely to fit under the sex discrimination rubric, but there are exceptions. For example, treating an individual worse because he or she is bisexual would seem to fall into this gap, as I discussed in an earlier post. If you treat a bisexual individual worse than a similarly situated heterosexual or homosexual individual, that appears to be pure sexual orientation discrimination and therefore not covered under Title VII, at least as it has been interpreted by the Hively majority. Of course, if you treat both bisexuals and homosexuals worse than heterosexuals, then discrimination against a bisexual would be covered, because it would be based not on bisexuality per se, but on the fact that the individual is not exclusively heterosexual. Another example would likely be disparate impact claims. To establish sex-based disparate impact, you compare men with women, so comparing heterosexuals with gay men and lesbians would appear to be pure sexual orientation discrimination and therefore outside the scope of Title VII.

Sex Stereotyping Violates Title VII Because It Discriminates Based on "Biological Sex"

The majority clarified that sex stereotyping -- treating a man worse because he is effeminate or a woman worse because she is masculine -- is covered under Title VII because it discriminates on the basis of the "victim’s biological sex (either as observed at birth or as modified, in the case of transsexuals)." In other words, sex stereotyping violates Title VII because it means treating a feminine man worse than a feminine woman or treating a masculine woman worse than a masculine man.

I view the majority's clarification of sex stereotyping as significant because it refutes overreaching interpretations of Price Waterhouse v. Hopkins, which explained that "[i]n the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender."

Rather than recognizing that the Court was merely stating the obvious -- that you aren't permitted to treat an aggressive woman worse than an aggressive man -- some regard Price Waterhouse as expanding the scope of Title VII. Epitomizing such interpretations is the EEOC's decision in Macy v. Holder, in which the EEOC explained:
That Title VII's prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex, is important. If Title VII proscribed only discrimination on the basis of biological sex, the only prohibited gender-based disparate treatment would be when an employer prefers a man over a woman, or vice versa. But the statute's protections sweep far broader than that, in part because the term "gender" encompasses not only a person's biological sex but also the cultural and social aspects associated with masculinity and femininity.
The EEOC would have you believe that Price Waterhouse expands on the enumerated protected bases under Title VII (race, color, sex, national origin, and religion) by adding "gender." In the EEOC's view, if Title VII does not prohibit "gender discrimination," then an employer would be free to fire an aggressive woman but not fire an aggressive man. However, that is simply hogwash. Title VII never requires a complainant to show that a prohibited characteristic was the sole reason for the challenged action. For example, it would violate Title VII for an employer to fire a woman who engaged in misconduct but not a man who engaged in similar misconduct. Likewise, it is unlawful to fire an aggressive woman but not an aggressive man. In both of these examples, the termination is based on the victim's sex. It is of no matter that the termination was also based on a nondiscriminatory characteristic. Moreover, if the EEOC's interpretation of Price Waterhouse were correct, it would mean that aggressiveness and other characteristics associated with sex stereotypes would be protected in and of themselves, so an employer could not discriminate, for example, based on aggressiveness, even if it treats aggressive men the same as aggressive women.

By viewing sex stereotyping through the lens of discrimination between biological men and women, the Hively majority gives the lie to the EEOC's analysis in the Macy decision and to other policy-driven interpretations of Title VII that ignore both statutory language and congressional intent.

A Religious Organization That Objects to Homosexuality Might Be Permitted to Discriminate Based on Sexual Orientation

Significantly, the majority noted that it was merely holding that an individual alleging sexual orientation discrimination has "put forth a case of sex discrimination for Title VII purposes," and that other issues would have to be resolved in subsequent litigation. In particular, the Hively court noted that it was not addressing the extent to which a religious organization might be able to discriminate on the basis of sexual orientation. Citing Title VII, the court suggested that a religious organization might be able to discriminate in filling positions "related to a religious mission." The relevant Title VII provision, 42 U.S.C. 2000e-1(a), however, is not limited to certain positions and permits religious organizations to favor co-religionists when hiring for any position. Thus, it seems arguable that if a religious organization has a religious objection to homosexuality, it would not violate Title VII for the organization to refuse to hire gay men and lesbians.
