April 14, 2017 Practice Points

Anti-Gay Workplace Discrimination Illegal under Federal Law

By Mark Hamby

In Hively v. Ivy Tech, the Seventh Circuit (Wisconsin, Illinois, and Indiana) in Chicago issued a landmark decision finding that Title VII of the Civil Rights Act prohibits sexual orientation discrimination. The en banc decision was 8 to 3, and the majority included five Republican appointed judges. The decision followed the argument laid out by the Equal Employment Opportunity Commission. Although the decision technically applies only to employers in the three Seventh Circuit states, it extends the growing number of federal courts finding that Title VII extends to employees based on their sexual orientation. The opinion written by Chief Judge Diane Wood provides three bases for extending Title VII.

The first is based on Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), in which the Supreme Court held that sex discrimination, based on not conforming to how a woman is typically perceived to behave (ie., a gender stereotype) is prohibited under Title VII. Judge Wood wrote that Kimberly Hively represented the ultimate case of failing to conform to gender stereotypes. By discriminating against Hively for failing to conform to the stereotype, Ivy Tech, Hively's employer, engaged in unlawful sex discrimination.

The second basis was based on the comparative method, derived from the plain language of the statute itself. Hively faced discrimination because she was a woman dating a woman—discrimination she would not have faced if she were dating a man, or if she were a man dating a woman. Judge Wood described this as "paradigmatic sex discrimination."

The third basis is the associational theory, also known as the Loving theory based on Loving v. Virginia in which the Supreme Court struck down miscegenation laws, specifically Virginia's law. 338 U.S. 1 (1967). Courts have followed the EEOC's lead and have held that discrimination based on the race of the person with whom the employee associates is discrimination based on Title VII. See Blanks v. Lockheed Martin Corp., 568 F.Supp.2d 740, 744 (S.D. Miss. 2007) (cites group of cases holding Title VII covers associational discrimination based on race).

Sex stereotyping like Price-Waterhouse in which the person does not act according to perceived norms for that gender; paradigmatic sex discrimination—the comparative method—pursuant to the plain language of the statute; and the associational theory or Loving theory based on associating with a person who is perceived not to be of the correct sex or gender, each provide a basis for concluding that Title VII should cover sexual orientation. Hively provides a well-written argument and three bases for including sexual orientation under Title VII.

Mark Hamby is an attorney with Widdows Law in Tulsa, Oklahoma.

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