In a recent decision explaining its dissatisfaction with the current distinction between gender non-conformity claims, which are cognizable in the private employment context, and sexual orientation discrimination claims, which federal appellate courts have held are not, a Seventh Circuit panel affirmed the dismissal of an adjunct professor’s sex discrimination claim based solely on sexual orientation discrimination. Hively v. Ivy Tech Cmty. Coll., No. 15-1720 (7th Cir. July 28, 2016).Noting that 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, the Court made several, surprisingly candid observations about the current state of the law.
First, the existing distinction between gender non-conformity claims and sexual orientation claims has created an “odd state of affairs” in the law in which Title VII protects gay, lesbian, and bisexual people, but usually only to the extent that they meet society’s stereotypical norms about how gay men or lesbian women look or act (i.e., that gay men are effeminate or lesbian women have masculine mannerisms). In contrast, lesbian, gay or bisexual people who otherwise conform to gender stereotyped norms in dress and mannerisms lose their claim.Second, case law has created a “paradoxical legal landscape” in which a person can be married on a Saturday and then fired on a Monday, because although federal law now guarantees anyone the right to marry another person of the same gender, Title VII, to the extent it does not reach sexual orientation discrimination, allows employers to fire employees for doing so.
Third, both Congress and the Supreme Court have had opportunities to consider the question of whether Title VII’s prohibition on sex-based discrimination extends to protect against sexual orientation discrimination, but “in addition to the Supreme Court’s silence, Congress has time and again said ‘no,’ to every attempt to add sexual orientation to the list of categories protected from discrimination by Title VII.”Undeniably frustrated by the decision it felt compelled to reach based on the principle of stare decisis, the Court concluded its opinion with the following:
Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they love, date, or marry…this court undoubtedly does not condone it…but writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent…"If Congress or the Supreme Court were to act, the Seventh Circuit has provided a blueprint for change.