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Hively v. Ivy Tech Community College

United States Court of Appeals for the Seventh Circuit
830 F.3d 698 (2017)
ELI5:

Rule of Law:

Discrimination on the basis of sexual orientation is a form of sex discrimination and is therefore prohibited under Title VII of the Civil Rights Act of 1964.


Facts:

  • Kimberly Hively is an openly lesbian woman.
  • In 2000, Hively began working as a part-time, adjunct professor at Ivy Tech Community College.
  • Between 2009 and 2014, Hively applied for at least six full-time positions at the college but was never hired for any of them.
  • In July 2014, Ivy Tech did not renew Hively's part-time contract.
  • Hively believed that Ivy Tech refused to promote her and ultimately terminated her employment because of her sexual orientation.

Procedural Posture:

  • Kimberly Hively filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC).
  • After receiving a right-to-sue letter, Hively filed a pro se lawsuit against Ivy Tech in the U.S. District Court for the Northern District of Indiana.
  • Ivy Tech filed a motion to dismiss for failure to state a claim, arguing Title VII does not protect against sexual orientation discrimination.
  • The district court granted Ivy Tech's motion and dismissed the case with prejudice, citing binding Seventh Circuit precedent.
  • Hively appealed the dismissal to the U.S. Court of Appeals for the Seventh Circuit.
  • A three-judge panel of the Seventh Circuit affirmed the district court's decision, acknowledging it was bound by precedent.
  • A majority of the active judges of the Seventh Circuit then voted to grant a rehearing of the case en banc.

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Issue:

Does Title VII of the Civil Rights Act of 1964's prohibition against employment discrimination 'because of... sex' encompass discrimination based on sexual orientation?


Opinions:

Majority - Wood, C.J.

Yes. Discrimination on the basis of sexual orientation is a form of sex discrimination prohibited by Title VII. The court provides two primary rationales. First, under the comparative method, discrimination against Hively is based on her sex; if she were a man in a relationship with a woman, she would not have faced the adverse employment action. This is also a form of gender non-conformity discrimination, as being a lesbian is the 'ultimate case of failure to conform to the female stereotype' that women should only be in relationships with men, a form of discrimination prohibited under Price Waterhouse v. Hopkins. Second, under an associational theory derived from cases like Loving v. Virginia, just as discriminating against an employee for an interracial association is race discrimination, discriminating against an employee for a same-sex association is sex discrimination because the adverse action is based on the sex of the person with whom the employee associates. The court concludes that it is impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.


Dissenting - Sykes, J.

No. Title VII's prohibition on sex discrimination does not encompass discrimination based on sexual orientation. The dissent argues that the original public meaning of 'sex' at the time of Title VII's enactment in 1964 referred to biological sex (male or female) and did not include sexual orientation. When Congress intends to prohibit sexual orientation discrimination, it does so explicitly and separately from sex, as seen in other statutes. The majority's application of the comparative method is flawed because it changes two variables (sex and sexual orientation) instead of just one. Furthermore, precedents like Loving v. Virginia and Price Waterhouse v. Hopkins are inapplicable because sexual orientation discrimination is not inherently sexist in the way that miscegenation laws were inherently racist, nor is heterosexuality a sex-specific stereotype. The majority is engaging in judicial statutory updating, which is the role of the legislature, not the judiciary.


Concurring - Posner, J.

Yes. While agreeing with the outcome, this concurrence advocates for a more direct approach of 'judicial interpretive updating.' It argues that courts should give fresh meaning to old statutes to avoid obsolescence and satisfy modern needs and understandings. The meaning of 'sex' has evolved since 1964, and societal attitudes toward homosexuality have changed dramatically. Rather than relying on strained readings of precedent, the court should openly acknowledge it is interpreting Title VII in light of 'what this country has become' to recognize that discrimination against homosexuals is now understood as a form of sex discrimination.


Concurring - Flaum, J.

Yes. The text of Title VII itself compels the conclusion that sexual orientation discrimination is sex discrimination. Homosexuality is defined by attraction to the 'same sex,' making a person's sex an inextricable component of their sexual orientation. Therefore, discriminating against a homosexual employee is necessarily motivated, in part, by the employee's sex. Because Title VII prohibits employment actions where sex is 'a motivating factor,' even if other factors are also present, discrimination on the basis of homosexuality is unlawful.



Analysis:

This landmark decision by the Seventh Circuit was the first time a federal appellate court held that Title VII's prohibition on sex discrimination covers sexual orientation. It created a circuit split and directly challenged the long-standing judicial consensus to the contrary, paving the way for the Supreme Court's eventual ruling on the issue in Bostock v. Clayton County. The case highlights the jurisprudential clash between originalist and dynamic methods of statutory interpretation and demonstrates how evolving social norms can influence the judiciary's reading of decades-old statutes. Its multiple opinions showcase various legal pathways—comparative, associational, textual, and dynamic interpretation—to reach the same conclusion.

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