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Gay Employment Bias Goes Before Full Seventh Circuit    

 LAMBDALEGAL.ORG Plaintiff Kimberly Hively and Lambda Legal’s Gregory Nevins outside the federal courthouse in Chicago. | LAMBDALEGAL.ORG

Plaintiff Kimberly Hively and Lambda Legal’s Gregory Nevins outside the federal courthouse in Chicago. | LAMBDALEGAL.ORG

BY ARTHUR S. LEONARD | The full Seventh Circuit Court of Appeals bench has heard oral argument on the question of whether sexual orientation discrimination in the workplace is illegal as sex discrimination under Title VII of the Civil Rights Act of 1964.

The November 30 hearing, in Hively v. Ivy Tech Community College, marked the first time that the full bench of a federal appeals court agreed to reconsider that issue, which could result in a landmark ruling that anti-gay discrimination by all employers with at least 15 employees is illegal.

The argument before the Chicago-based court included all nine active members of the circuit plus two senior judges who participated in the original three-judge panel that considered Kimberly Hively’s suit against the South Bend, Indiana-based college.

Sitting en banc, judges reconsider whether Title VII sex discrimination protections apply

The Seventh Circuit, which hears appeals in federal court cases from Illinois, Indiana, and Wisconsin, has ruled several times in the past that the sex discrimination ban in Title VII does not apply to sexual orientation discrimination claims.

Both federal trial courts and three-judge appellate panels are bound to follow circuit precedents, which can only be overturned by a full (en banc) appellate bench or the Supreme Court. When Hively appealed a district court ruling that (reluctantly) dismissed her Title VII claim against Ivy Tech, the three-member panel of Judges Ilana Rovner, William Bauer, and Kenneth Ripple held it was bound by precedent to reject her sexual orientation discrimination claim under Title VII.

Bauer and Ripple, semi-retired senior judges, were appointed by Presidents Gerald Ford and Ronald Reagan, respectively. Rovner was appointed by George H. W. Bush. Rovner and Bauer joined in part of the panel’s opinion suggesting that the circuit precedent was out of sync with the times and should be reconsidered, while Ripple joined only that part dismissing the appeal based on circuit precedent.

Of the federal circuits, the Seventh may have the smallest representation of judges appointed by Democratic presidents – just three out of nine, with President Barack Obama having appointed Judge David Hamilton and Bill Clinton, Chief Judge Diane Wood and Judge Ann Claire Williams. Among the remaining active judges, Richard Posner, Joel Flaum, Frank Easterbrook and Michael Kanne were appointed by Reagan, Rovner by the elder Bush, and Diane Sykes by George W. Bush.

Still, several of the Republican appointees are libertarian conservatives with moderate to liberal views on social issues, and the Seventh Circuit produced one of the most strongly worded pro-marriage equality rulings, authored by Posner, in the lead-up to the June 2015 Obergefell marriage equality ruling at the Supreme Court.

Lambda Legal attorney Gregory Nevins represented plaintiff Hively, who alleged she was not renewed as an adjunct professor or promoted to a full-time position because college administrators discovered she was a lesbian when they heard reports she had kissed her same-sex partner when being dropped off in the school’s parking lot. (Needless to say, a female faculty member kissing a male partner in such circumstances would not occasion any adverse consequences.) Nevins argued that the court should overrule its prior decisions and adopt the view that the prohibition on discrimination because of sex encompasses sexual orientation discrimination claims – consistent, he said, with the statutory language and supported by Supreme Court cases that have found adverse employment decisions based on sex stereotypes to be illegal sex discrimination.

Since Title VII was adopted in 1964, the Supreme Court and Congress have several times expanded the meaning of “discrimination because of sex” to encompass a broader range of cases than Congress would likely have originally contemplated. In some instances, Congress has disagreed with narrow interpretations by the Supreme Court and amended the statute to adopt a broader view, such as when the high court ruled it was not sex discrimination for an employer to exclude coverage for expenses of pregnancy and childbirth from its health insurance plan.

In considering whether Title VII extended to claims of “same-sex” harassment, Justice Antonin Scalia wrote for the court that Title VII could be interpreted to apply to “evils” that were “comparable” to those that Congress sought to address, rejecting the argument that same-sex harassment was not covered because there was no evidence that members of Congress in 1964 thought their decision to include “sex” in the statute would apply to that kind of case. Scalia wrote that we are “governed” by the language of the statute, not the presumed intentions of its drafters.

The court also heard briefly from Gail Coleman, an attorney at the federal Equal Employment Opportunity Commission, who put forth the agency’s position that sexual orientation discrimination claims are “necessarily” sex discrimination claims. The EEOC formally took that position for the first time in July 2015, ruling on a discrimination claim by a gay air traffic controller who claimed he was denied a permanent position due to his sexual orientation in violation of Title VII.

An audio recording of the oral argument makes for fascinating listening, especially the court’s very pointed questioning of the attorney for the college, John Maley, who appeared particularly flustered by Judge Posner’s question: “Why are there lesbians?” This was part of a sequence of questioning that led Posner to suggest that because sexual orientation seems like an immutable characteristic traceable, at least in part, to genetics and biology, lesbians and “homosexual men” are a “different sex” from heterosexual women and men, leading to the natural conclusion that sexual orientation discrimination is sex discrimination.

Posner also rejected the college’s suggestion that Title VII must be limited by the intentions of the 1964 Congress, asserting that courts do not treat statutory language as “frozen” at the time it is adopted. He cited as examples the 14th Amendment, whose framers would have been shocked at Brown v. Board of Education, the case that outlawed racial segregation of public schools in 1954, and the Sherman Anti-Trust Act, adopted in 1890, whose modern interpretation would be unrecognizable to its drafters.

Other judges seemed more comfortable with treating the issue as a logical extension of the Supreme Court’s Price Waterhouse v. Hopkins sex-stereotyping decision from 1989 and its Oncale v. Sundowner Offshore same-sex harassment ruling from 1999 – suggesting flexibility in adapting the meaning of “because of sex” in response to changed social understanding – or of Loving v. Virginia, where the high court held that penalizing interracial marriage was race discrimination.

Chief Judge Wood questioned why the college, which has adopted a non-discrimination policy that includes sexual orientation, was asking the court to hold Title VII inapplicable.

Judge Easterbrook pointed out that Hively’s appellate brief relied heavily on Loving v. Virginia, and asked why the college’s brief did not address that case at all. Maley struggled to come up with an answer, having evidently not anticipated the question.

The New York-based Second Circuit will shortly hear – and the Atlanta-based 11th Circuit recently has heard – oral arguments about whether sexual orientation discrimination claims can be brought under Title VII, but the Seventh Circuit will likely be the first to issue an en banc opinion on the subject. If the court rules in favor of Hively, the college will have the option of filing a petition with the Supreme Court to review the case. Such a decision by the Seventh Circuit would create a split among the federal circuit courts on a question of national importance, setting up an interesting policy question for the incoming Trump administration: whether to intervene and which side to take. The EEOC’s participation on Hively’s side would not preclude a new solicitor general from deciding to argue the opposite position.

BNA Bloomberg’s Daily Labor Report, summarizing the hearing, suggested that at least six judges (a majority of the 11) seemed skeptical of the college’s arguments.

The only judge whose questioning of Lambda’s Nevins communicated any disagreement with the plaintiff’s position seemed to be Diane Sykes, who is on President-elect Donald Trump’s list of prospective Supreme Court nominees. A vote that Title VII covers sexual orientation discrimination, coming just as Trump’s decision on a nominee to replace the late Antonin Scalia is being made, might be disqualifying in the eyes of Attorney General-designate Jeff Sessions and Senate Republicans, so few were predicting that Sykes would side with Hively.

The Washington Post in a story about the hearing speculated that the only real question was which theory the court would use to rule in favor of Hively’s position that Title VII covers sexual orientation claims. But counting chickens before the eggs hatch is a perilous venture.

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