Never underestimate the power of a pro se litigant. That’s one lesson to take away from the Seventh Circuit’s en banc opinion in Hively v. Ivy Tech Community College, which is the first appellate decision to hold that Title VII bars employment discrimination on the basis of a person’s sexual orientation. Because Ivy Tech has stated that it does not plan to seek Supreme Court review (despite a Circuit split on the issue), employers subject to Title VII, particularly in Illinois, Wisconsin and Indiana, should know about this opinion and consider how and whether it may apply to them.
Surprisingly, this momentous decision resulted not from a national impact-litigation strategy but rather from the humble efforts of one pro se litigant. Math teacher Kimberly Hively filed a form complaint in federal court that alleged she was denied full-time teaching positions and promotions based on her sexual orientation, and sought damages based on Title VII and 42 U.S.C. § 1981. Ivy Tech Community College moved to dismiss and the Northern District of Indiana granted the motion. Undeterred, Ms. Hively retained advocacy group Lambda Legal to prosecute an appeal. Although she initially lost in a now-vacated opinion filed by a Seventh Circuit panel, Ms. Hively successfully sought reconsideration by the en banc Seventh Circuit with the support of amici EEOC and five Members of Congress, among others. The full Court voted 8-3 in favor of Ms. Hively and issued four opinions.
The issue before the Court was whether Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e-2(a)), which makes it unlawful for employers to discriminate on the basis of sex, prohibits discrimination on the basis of a person’s sexual orientation. Writing for the majority, Chief Judge Diane Wood acknowledged that courts had long answered this question in the negative but stated that the Seventh Circuit was “tak[ing] a fresh look at our position in light of developments at the Supreme Court extending over two decades.” She specifically noted Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which “held that the practice of gender stereotyping falls within Title VII’s prohibition against sex discrimination,” and Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), which “clarified that it makes no difference if the sex of the harasser is (or is not) the same as the sex of the victim.” Judge Wood explained that, if true, the alleged facts could constitute unlawful discrimination based upon sex for two reasons: (1) if plaintiff were a man and all other facts remained the same, defendant would not have discriminated against her; and (2) defendant discriminated against plaintiff because she chose a woman, not a man, as her romantic partner. Judge Wood concluded that “[t]he logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.”
After this decision, it is likely that many in the LGBT community will file claims seeking protection under Title VII. Courts will presumably reach different results about the viability of these claims until (and if) the issue reaches the Supreme Court. For now, therefore, employers should be aware of this decision and, at least in the Seventh Circuit, modify their EEO policies to include sexual orientation as a protected class. Those employers will also want to instruct their HR staff and operations supervisors and managers regarding the potential legal implications of treating employees differently based on their sexual orientation.