Seventh Circuit Ready to Recognize Discrimination Based on Sexual Orientation

Originally published by Thomas J. Crane.

I written before about the complicated decisions regarding whether Title VII prohibits discrimination based on sexual orientation. Ever since the Supreme Court’s decision in Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), courts have been grappling with same sex harassment. Does Title VII prohibit discrimination based on sex or not? See my post here and here. The challenge for all judges is that Congress has considered amending Title VII to add protections based on sexual orientation, but ultimately has chosen not to do so. So, the court in Oncale tried to walk a fine line, determining that Title VII did prohibit harassment based on gender stereotypes, but not based on sexual orientation. So, as in Oncale, male on male harassment does violate Title VII so long as they harasser is not motivated by sexual interest.

But, the Seventh Circuit in Chicago appears to be prepared to upend that interpretation of Title VII. In Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir.), many members of the en banc panel expressed misgivings about the current state of the law. Even the more conservative members of the panel shared concerns with precedent. See Slate post here about that en banc hearing. Title VII states plainly that it prohibits discrimination based on sex. If discrimination is based on sexual orientation, how is that not discrimination based on sex? Judges, left of center or right of center are inherently conservative. They much prefer to interpret the written law as it is written. It is increasingly difficult to ignore the wording of Title VII. It does, after all, prohibit discrimination based on sex.

The EEOC has already issued opinions supporting the view that Title VII prohibits discrimination based on sexual orientation. Courts are generally not far behind the EEOC. Even the well respected Judge Posner pointed out that statutory interpretation is not frozen in time. The Civil Rights Act of 1964, what we know as Title VII, was after all, passed in 1964. That was some time ago. Things have changed, pointed out Judge Posner. Judge Bauer, 90 years old, joined with Judge Posner to laugh at the outdated notion that lesbian women are a reaction to ugly men. You know when the judges are joking, the case is really already decided.

As noted at the end of the hearing, the Seventh Circuit is not a particularly liberal circuit. But, its judges tend to be thoughtful judges dedicated to a high standard of judicial scholarship. If they see the law certain way, one can expect them to adhere to their principles.

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