The lede comes directly from last Thursday’s much anticipated decision, in which the Seventh Circuit concluded in Hively v. Ivy Tech Community College (opinion here) that Title VII of the Civil Rights Act of 1964, the federal workplace anti-discrimination statute, does not protect workers from discrimination based on LGBT status.
Title VII does not apply to claims of sexual orientation discrimination.
Put differently, Title VII protects against sex discrimination. But, discrimination based on sexual orientation is not the same as sex discrimination. So, LGBT bias at work is lawful.
Truth be told, although I’ve read it several times, I have a tough time following the Seventh Circuit’s 42-page roadmap of an opinion. It winds along a “paradoxical legal landscape in which … federal law now guarantees anyone the right to marry another person of the same gender, [however,] Title VII, to the extent it does not reach sexual orientation discrimination, also allows employers to fire that employee for doing so.”
Throughout its opinion, the Hively Court acknowledges the “arbitrary” and “unhelpful” distinctions that courts have made between claims of gender non-conformity (unlawful) and discrimination based on sexual orientation (lawful), which have created an “odd body of case law.” At one point, the Seventh Circuit even questioned whether “the sexual orientation-denying emperor of Title VII has no clothes.”
So, for me to try to parse through the analysis…fuggedaboutit. Instead, you can try Chris Geidner at Buzzfeed, who has a nice write-up of Hively here.
But, here’s what I do know from Hively:
- Companies cannot discriminate based on sex;
- Companies cannot sex stereotype;
- Companies cannot permit same-sex harassment;
- Companies cannot act against an employee based on the race of that individual’s significant other; however
- “A person can be married on Saturday and then fired on Monday for just that act.”
[Update: Head over to Jon Hyman’s Ohio Employer’s Law Blog and read why he recommends that “Employers, ignore 7th Circuit’s rejection of Title VII LGBT protections“]
The EEOC remains committed to addressing LGBT bias.
The Seventh Circuit’s decision not only follows prior precedent within that circuit, but conforms with decisions from the First, Second, Third, Fourth, Fifth, Sixth, Eighth, Tenth, and D.C. Circuits. But, will this change the EEOC’s position on LGBT discrimination? Not a chance!
On Facebook, EEOC Commissioner Chai Feldblum commented (here) about how “HARD” the Hively Court struggled to “conclude that sexual orientation discrimination is not a form of sex discrimination.” The EEOC will continue to receive and process claims from individuals alleging that they were discriminated against on the basis of their sexual orientation.
Will the EEOC continue as the lone wolf? Maybe not. The Second Circuit will have the chance to depart from its own precedent, when it decides Christiansen v. Omnicom Group, Inc. Mr. Christiansen, along with several amicus, are asking the Second Circuit to conclude that discrimination based on sexual orientation violates Title VII.
A charge to my fellow management-side employment lawyers.
I abhor LGBT bias in the workplace. Personal feelings aside, as an employment lawyer, for a long time I took the position the same position as the Hively Court: Title VII does not cover discrimination based on sexual orientation. However, based on the Second Circuit briefs filed in Christiansen and, ironically, the Seventh Circuit’s opinion in Hively, I’m more convinced than ever that I was wrong!
A few weeks ago (before the Seventh Circuit decided Hively), I presented on LGBT rights at the EEOC EXCEL Conference. At the Conference, I had the pleasure of having breakfast with an EEOC VIP. Over breakfast, we spent a lot of time discussing the state of LGBT workplace rights under federal law. Legal merits aside, what stuck with me most — other than the oatmeal — was a question posed to me that, throughout critical junctures in history, has been asked many times:
“What side of history do you want to be on?”
Well, let’s talk about history.
The primary intent of Title VII was to address race discrimination. But, sex discrimination was included too. Were LGBT rights on the minds of Congress? Probably not. However, in Oncale v. Sundowner Offshore Services, Inc., writing for the unanimous Supreme Court that concluded that same-sex harassment is unlawful, Justice Scalia wrote: “Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
I think of cases like Oncale and Price Waterhouse v. Hopkins, in which the Supreme Court recognized that sex stereotyping is sex discrimination, and I scratch my head when the Hively Court concludes that Title VII does not cover sexual orientation. Jeez! The three-judge panel literally conceded that discrimination based on who someone loves is the ultimate sex stereotype:
“Discrimination against gay, lesbian, and bisexual employees comes about because their behavior is seen as failing to comply with the quintessential gender stereotype about what men and women ought to do—for example, that men should have romantic and sexual relationships only with women, and women should have romantic and sexual relationships only with men. In this way, almost all discrimination on the basis of sexual orientation can be traced back to some form of discrimination on the basis of gender non‐conformity….Lesbian women and gay men upend our gender paradigms by their very status—causing us to question and casting into doubt antiquated and anachronistic ideas about what roles men and women should play in their relationships”
Then, the Hively Court, acknowledged that discrimination based on sexual orientation is also a form of associational discrimination, which too is unlawful:
Consequently, if Title VII protects from discrimination a white woman who is fired for romantically associating with an African-American man, then logically it should also protect a woman who has been discriminated against because she is associating romantically with another woman, if the same discrimination would not have occurred were she sexually or romantically involved with a man….It is discrimination based on the nature of an associational relationship in this case, one based on gender.
Friends, I’m no trailblazer for LGBT rights. I’m just an employment lawyer with a snarky blog. But, I want my LGBT co-workers to be treated with the same respect in the workplace as all other protected classes. Plus, I’m smart enough to know where this is going to end up. Whether it’s the Supreme Court or Congress (or, theoretically, an en banc Seventh Circuit panel for many midwest employers), this will get fixed one day.
Until then, I’ll zealously advocate for companies accused of LGBT bias, who have done no such thing. That’s my job. It’s what I love to do. However, I’m done arguing that federal law (Title VII) does not protect workers from discrimination based on LGBT status.
And I hope you’ll think about it too. Because, among other things, we don’t want to be on the wrong side of history — especially, when it’s at the intersection of personal and professional.