Potato, Potahto…Sexual Orientation as Sex Discrimination: A Review of Hively v. Ivy Tech Community College

By Tami Hannon

In recent years, the concept of “sex” discrimination under Title VII has been in the limelight.  Everyone agrees that discrimination based on “sex” is prohibited under the laws, but there has been much dissent over what is encompassed under the concept of “sex.”  Does sex discrimination cover appearance?  What about transgender status?  Does it cover sexual orientation?

Until recently, most courts agreed that “sex” was broader than just discrimination due to biological sex.  “Sex” was interpreted as encompassing sexual stereotyping and an employer’s perception of what behavior was appropriate for a male or female.  Despite this, the majority of courts resolutely held that concepts such as transgender and sexual orientation were not specifically protected under Title VII.  That perception is now shifting.

The 7th Circuit Court of Appeals recently held that discrimination based upon sexual orientation is a form of “sex” discrimination under Title VII.  In Hively v. Ivy Tech Community College, Ms. Hively was openly lesbian.  She was hired as a part-time professor in 2000.  Over the years, she applied for several full-time positions, but was never promoted.  In 2014, her part-time teaching contract was not renewed, resulting in her termination from the college.

Ms. Hively filed a discrimination charge with the Equal Employment Opportunity Commission alleging that the failure to promote her to a full-time position and the decision not to renew her contract was based on her sexual orientation.  The EEOC declined to pursue the case, and Ms. Hively filed a federal lawsuit under Title VII, alleging sexual discrimination.  The district court dismissed her case on the basis that sexual orientation was not a protected class under Title VII.

Ms. Hively appealed.  The three judge panel assigned to hear her case agreed that the district court had properly dismissed her case, though the panel believed the underlying law was in question given recent U.S. Supreme Court opinions.  Ms. Hively requested that the entire 11 judge panel of the 7th Circuit Court of Appeals review her case (what is known as an en banc hearing) and determine whether the underlying law was still valid.  The court accepted her petition and the entire 11 judge panel considered her claims.  The panel concluded that the past case law was no longer valid, and that sexual orientation is a form of “sex” discrimination under Title VII.

While the final outcome is a marked departure, the law used by the 7th Circuit in reaching this conclusion is not.  The court relied upon past U.S. Supreme Court cases prohibiting gender stereotyping and same sex harassment to find that Title VII applies to more than biological sex.  The Hively court also gave a nod to the recent U.S. Supreme Court case of Obergefell which recognized the constitutional right of same sex couples to marry.

The court held that beliefs as to with whom one should be intimate is the sine quo non of gender stereotypes.  The court further found that, under the allegations made by Ms. Hively, she would have received the promotions if she had been a man married to a woman.  As she did not receive the promotions because she was a female, the claim properly alleged sex discrimination.

Ms. Hively also alleged that she was discriminated against for associating with (i.e. marrying) a female.  Ms. Hively made her arguments under the now widely accepted case law that a person of one race cannot be discriminated against for marrying a person of another race.  The court found that discriminating against a woman who was married to a woman was no different than the laws prohibiting discrimination based on interracial marriages.  If the gender of one of the parties in the relationship was changed, so to would be the outcome.  The court found that was the very definition of discrimination based on gender.

The Hively case was decided by the 7th Circuit Court of Appeals, which does not have jurisdiction over Ohio.  Our own courts still hold that sexual orientation is not a separate protected class, though protection is granted to individuals who suffer discrimination if they do not conform to societal notions of “male” and “female.”  The opinion in Hively may signal a shift towards accepting sexual orientation as a protected class, which would likely also extend to transgender individuals under the more inclusive definition of gender stereotyping being applied.  Nevertheless, the Hively opinion was not unanimous, showing that there is still dispute as to whether sexual orientation is a form of sex discrimination.

The Hively case may find its way to the U.S. Supreme Court.  The sitting panel is largely the same as that which issued the opinion in Obergefell, such that Hively could find a friendly ear.  However, the Supreme Court has recently backed down from issuing opinions on what constitutes “sex” discrimination such that the Court may decline to hear the case.  Despite the unknowns one thing remains clear, “sex” discrimination under Title VII remains difficult to define.