The 7th Circuit Likely to Rule Anti-Gay Employment Discrimination Is Illegal

Litigators involved in Hively v. Ivy Tech. David Lopez, EEOC general counsel; Gail Coleman, EEOC attorney; Gregory Nevins, counsel for the Southern Regional Office of Lambda Legal; and Chai Feldblum, EEOC commissioner.

Mark Joseph Stern

CHICAGO—The United States Court of Appeals for the 7th Circuit is very certain that lesbians exist but it is not entirely sure why, or what to do about them. On Wednesday morning, the entire court heard arguments in Hively v. Ivy Tech Community College, a firecracker of a case that could overhaul nondiscrimination law across the country. The question: Does an existing federal civil rights law already prohibit workplace discrimination on the basis of sexual orientation? The answer: Probably—but nobody can quite agree why.

Here’s the trouble. Congress has repeatedly considered adding sexual orientation to Title VII of the Civil Rights Act of 1964, which prohibits several forms of employment discrimination, and ultimately declined to do so. But Title VII has, from the start, included a ban on discrimination “because of sex.” In 1989’s Price Waterhouse v. Hopkins, the Supreme Court defined sex discrimination to include sex stereotyping—mistreating employees because they fail to comply with gender norms. Since then, a number of courts have held that this expansive definition of sex discrimination may also encompass anti-gay discrimination. In 2015’s Baldwin v. Foxx, the Equal Employment Opportunity Commission declared that sexual orientation discrimination is sex discrimination under Title VII.

Hively marks LGBTQ advocates’ first opportunity to press the EEOC’s latest position in a federal circuit court. It’s a landmark case any way you slice it, but the molten tension in the courtroom on Wednesday is heightened by the looming possibility of Supreme Court review. If the ideologically diverse 7th Circuit issues a strong ruling affirming the EEOC, it would provide the justices with an excellent opportunity to take the case and settle the issue nationwide—and for Justice Anthony Kennedy to cement his gay rights legacy.

So when Lambda Legal attorney Gregory R. Nevins approaches the lectern to defend Kimberly Hively, his frothy, nervous energy feels entirely appropriate. Hively alleges that she was denied a full-time position at Ivy Tech because she is a lesbian. Nevins barely begins to explain why that qualifies as sex discrimination when Chief Judge Diane Wood cuts to the core of the argument.

“You’re saying this is a but-for test,” Wood says. “But for her sex, this wouldn’t have happened.”

Wood has lit upon one of the EEOC’s three big Baldwin rationales: That any coherent understanding of sexual orientation must include reference to sex—and the entire purpose of Title VII was to take sex off the table as a legitimate concern in workplace matters. To illustrate this idea, imagine a man is employed by a vicious homophobe. If the man dates women, the employer won’t fire him. If the man dates men, the employer will sack him. The decision to fire the man was quite literally “because of sex”—if he were a different sex, or he dated a different sex, he would not have been fired. And under Title VII, that sex-based consideration is plainly unlawful.

But Judge Ilana Rovner isn’t sure it’s that simple. Rovner previously wrote a decision rejecting Hively’s claims, because current 7th Circuit precedent takes a narrow view of sex discrimination. Rovner, however, expressed qualms about that precedent and seemed eager for the opportunity to reverse it now. Her primary misgiving is Congress, which, as she puts it, “has again and again failed to expand the reach of Title VII.”

“Can we make anything of that at all?” Rovner asks. “Are we placing too much power in the judiciary to amend the word ‘sex’ to include ‘sexual orientation’ when we know this was not the initial intent of Congress?”

Nevins has a pretty great answer to that one.

“We want the court to apply the terms of the statute,” he says. If Congress doesn’t like the result, it can clarify that sex discrimination does not include sexual orientation discrimination. Judges shouldn’t ignore the plain meaning of a statute just because Congress isn’t sure what it wants the statute to mean.

And if the statute means what the Supreme Court says it means, Ivy Tech is in big trouble. The court, after all, has already said that sex stereotyping is sex discrimination. Doesn’t that resolve this case? “Isn’t there a stereotype built into” all anti-gay discrimination? Wood asks. “That if you’re biologically female, then you must be attracted to men?”

If anyone has ever been happier than Nevins in that moment, I haven’t seen it.

“Yes. Absolutely, your honor,” a glowing Nevins gushes. Wood—who, based on Wednesday’s hearings, seems poised to become a gay rights icon—has checked off a second Baldwin rationale: Anti-gay discrimination is itself a form of sex stereotyping. A homophobe believes men should only date women; this stereotype is nothing more than a gender norm, an expectation rooted in outmoded beliefs about sexuality. In Price Waterhouse, the Supreme Court stated that sex stereotypes could play no role in hiring or firing decisions. Why should this one be allowed?

Nevins sits down without a clear majority on his side. Gail Coleman, arguing for the EEOC, follows up his sturdy performance with a clear reiteration of his most critical points—but gets sidetracked by a few silly questions from Judge Diane S. Sykes, who seems to be auditioning to fill the Supreme Court vacancy. (Sykes popped up on Donald Trump’s Supreme Court shortlist and once wrote an awful anti-gay opinion.) But any fear of failure fades when John Robert Maley takes the lectern to defend Ivy Tech and Judge Frank H. Easterbrook, a conservative Ronald Reagan appointee, leans toward the microphone.

“I’d like you to focus on Loving v. Virginia from 1967,” Easterbrook says—his first comment of the day. “State law bans marriages between a black person and a white person. And the Supreme Court holds that that is race discrimination. Here we have an employer’s ban on relations between a woman and a woman. Why isn’t that sex discrimination by exactly the reasoning of Loving?”

Nevins nearly spins around in his chair with elation, because Easterbrook has nailed the final Baldwin rationale: that sexual orientation discrimination is “association discrimination” on the basis of sex. Consider our hypothetical homophobic employer again. If his gay employee dates women, he keeps his job. But if his gay employee dates men, he gets fired. Thus, his termination inherently involves considerations of his sex. The anti-miscegenation laws in Loving constituted race discrimination for an analogous reason: Richard and Mildred Loving were punished for associating with a partner of the “opposite” race, much like Kimberly Hively was allegedly punished for associating with a partner of the same sex.

Easterbrook’s question totally derails Maley, who stammers that “I recall Loving being a constitutional decision on marriage.” Correct! And not especially relevant! Now “I would appreciate it if you would address the significance of that case,” a visibly irked Easterbrook replies.

“That case does not translate into the interpretation of the term ‘sex’ within Title VII,” Maley responds.

“Why not?” Easterbrook and Wood ask simultaneously. After all, Title VII is generally considered to be broader than constitutional prohibitions on discrimination. But Maley doesn’t get a chance to respond, because Judge Richard Posner, the unlikely judicial champion of gay tolerance, jumps in.

“You seem to think that the meaning of a statute is frozen, or the meaning of a constitutional provision is frozen on the date of enactment,” Posner says. “Is that your position?”

But Maley can’t really respond to that one, either, because Posner supplies the answer: “Of course that’s false.” He then notes that Congress passed Title VII in 1964. “That’s a long time ago in terms of how people thought about sex,” Posner reminds Maley, “and in particular, how they thought about homosexuality. So you think we’re bound by what people thought in 1964?”

Maley sputters an answer, but Posner, with an impish grin, decides to have some fun. “Why do you think there are lesbians?” he asks.

“What was the question?” Judge William Joseph Bauer asks. The courtroom erupts in laughter. Maley begins to explain that homosexuality is an “immutable trait,” and Bauer cracks, “It’s not just ugly men, huh?” There is an awkward silence, then more laughter. Bauer is 90 years old, and that is the kindest thing I can think to say about him at this time. Posner explains that homosexuality appears to be “part of your genetic makeup,” meaning lesbians are “significantly different from other women.” His point is that, genetically speaking, sex literally includes sexual orientation, but nobody else picks up his wild hair of an argument, and it quickly fizzles.

Arguments drag on for a bit longer as the judges bat around poor Maley, a marvelously accomplished litigator who really does not deserve this stain on his record. By the time court adjourns, the vote count seems fairly clear: A majority of the judges believe anti-gay discrimination constitutes some kind of sex discrimination. Even if they can’t settle on a single Baldwin rationale, the buffet of options they present will give the Supreme Court an opportunity to select their favorite.

Afterward, I spoke with EEOC Commissioner Chai Feldblum, the mind behind the Baldwin decision, and Nevins, both of whom were practically buzzing with joy. I asked Nevins whether he saw a win in his future, but he hedged.

“The 7th Circuit isn’t the most liberal circuit,” Nevins told me. “But the judges are very smart and thoughtful.” He smiled broadly. “That works in our favor.”

Feldblum, while cautious not to make a prediction, was even more effusive.

“As we just saw, it’s practically impossible to rebut the EEOC’s argument,” Feldblum said. “The lawyer for Ivy Tech had no answer to the Loving question! None. Judge Easterbrook was right on target. Different judges discussed different theories, but they all led to one conclusion: Sexual orientation discrimination always involves gender. It is sex discrimination.”

The glee in the air, though, was tempered by a tinge of unease. Yes, the 7th Circuit will likely deliver a triumph to gay rights advocates. But the path forward from there is less certain. Will the Supreme Court take the case? Will Kennedy view this issue as a fitting capstone to his legacy of equal dignity? Or will he dash liberals’ hopes and set a painful precedent that Congress might not undo for a generation?

But all those concerns floated away as a giddy group of gay rights advocates walked out into the cold, thrilled at the thought that their largely thankless work might once again move America’s stubborn, clumsy laws one step closer to true equality.