Richard A. Posner
Richard A. Posner
Frank H. Easterbrook
Frank H. Easterbrook
Ilana Diamond Rovner
Ilana Diamond Rovner

Gays and lesbians who face discrimination in the workplace are entitled to the same protections as their straight co-workers, an attorney argued today.

It does not make sense, Gregory R. Nevins of the Atlanta-based Lambda Legal Defense and Education Fund Inc. contended, to interpret the word “sex” in anti-discrimination law to cover only biological sex.

The 7th U.S. Circuit Court of Appeals heard the case of former Ivy Tech Community College adjunct professor Kimberly Hively, who alleges she was passed over for promotions, denied a full-time job and ultimately fired because she is a lesbian.

Representing Hively, Nevins argued courts have held that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on an employee’s failure to conform to gender norms.

And one such norm is that women are attracted to men and men are attracted to women, Nevins told the 7th U.S. Circuit Court of Appeals.

However, he said, the courts have interpreted Title VII more narrowly than that.

“You can’t discriminate against a woman because she drives a Harley or has Bears season tickets or has tattoos,” Nevins said. “But you can because she’s a lesbian.”

Gail S. Coleman of the Equal Employment Opportunity Commission in Washington, D.C., joined Nevins in urging for a broader reading of Title VII.

Coleman said she was not calling for the 7th Circuit to invade Congress’ territory and rewrite Title VII.

“We’re not asking for any judicial amendment,” she said. “We’re asking for a more precise understanding of the word ‘sex.’”

But John R. Maley of Barnes & Thornburg LLP in Indianapolis didn’t see it that way.

Maley conceded that a person’s sexual orientation is an “immutable trait.”

But Title VII prohibits discriminating against employees based on a different trait — “whether they are male or female,” Maley argued.

It is up to Congress, he contended, to change Title VII if it wants to include sexual orientation as a protected trait.

The attorneys made their arguments in an en banc proceeding before the 7th Circuit.

Nevins and Coleman argued the case in favor of Hively.

Maley argued the case in favor of Hively’s former employer, Ivy Tech Community College. Hively worked as a part-time adjunct professor on Ivy Tech’s South Bend, Ind., campus for 14 years.

While arguing Title VII does not protect employees against discrimination based on their sexual orientation, Maley also contended the college does not engage in such discrimination.

The court heard the arguments in the ceremonial courtroom on the 25th floor of the Dirksen Federal Courthouse, which was packed with at least 200 spectators. Others listened to the arguments in an overflow courtroom.

The court did not issue an immediate ruling.

Hively sued Ivy Tech, but U.S. District Judge Rodolfo (Rudy) Lozano of the Northern District of Indiana dismissed the action.

Lozano held Hively had no case against the college because Title VII did not apply to claims of discrimination based on sexual orientation.

In July, a three-judge panel of the 7th Circuit reluctantly upheld Lozano’s decision, saying at several points in their opinion their finding was more a matter of following rather than agreeing with precedent.

The panel cited a “groundswell of questions” about why employees may sue for discrimination based on their failure to conform to gender norms but may not sue for discrimination based on their sexual orientation.

However, Judge Ilana Diamond Rovner wrote for the panel, courts were bound by prior rulings that “Title VII does not redress sexual orientation discrimination.”

Judges William J. Bauer and Kenneth F. Ripple joined Rovner’s analysis and the judgment against Hively.

But only Bauer joined the portion of the opinion discussing the EEOC’s ruling in Baldwin v. Foxx, Appeal No. 0120133080, 215 WL 4397641 (July 16, 2015).

In Baldwin, the EEOC reversed a decades-long stand and found that discrimination based on sexual orientation is prohibited by Title VII.

Rovner suggested that adopting Baldwin’s approach would prevent the “jumble of inconsistent precedents” that currently existed.

In September, the 7th Circuit vacated the panel’s ruling and set the case for a rehearing en banc.

Ripple and Bauer are senior judges, but they joined their nine active colleagues at today’s hearing because they served on the panel that initially ruled in the case.

Questions and comments by at least some of the judges indicated the 7th Circuit is willing to make an historic expansion of antidiscrimination law.

Rovner asked why a man cannot be fired for dating a woman but a woman can be fired for the same behavior.

“Why is that not discrimination based on sex, plain and simple?” she asked.

Judge Frank H. Easterbrook said he found it difficult to make a “principled distinction” between firing someone who is gay and someone who appears to be gay.

And he asked why the reasoning applied by the U.S. Supreme Court in its 1967 ruling striking down bans on interracial marriage should not be applied to Hively’s situation.

Judge Richard A. Posner asked why the 7th Circuit should hesitate to interpret Title VII based on today’s understanding of sex and sexual orientation.

“You seem to think the meaning of the statute was frozen on the day it was passed,” Posner said.

That notion, he continued, “is false.”

“Constantly, judges are reinterpreting statutes,” Posner said.

Also hearing the arguments were Chief Judge Diane P. Wood and Judges Michael S. Kanne, Ann Claire Williams, Diane S. Sykes, David F. Hamilton and Joel M. Flaum.

In addition to the EEOC, a slew of organizations — including the National Center for Lesbian Rights, the American Civil Liberties Union, Gender Justice and GLBTQ Legal Advocates & Defenders — filed amicus briefs urging the 7th Circuit to rehear the case.

Another brief calling for a rehearing was filed by five Democratic members of Congress.

They included U.S. Sens. Jeffrey A. Merkley of Oregon, Tammy Baldwin of Wisconsin and Cory A. Booker of New Jersey.

Also joining the brief were U.S. Reps. David N. Cicilline of Rhode Island and Mark Takano of California.

The case is Kimberly Hively v. Ivy Tech Community College, South Bend, No. 15-1720.

The court’s ruling in Hively’s case could affect claims brought under Title IX by transgender students who allege they were the target of discrimination because of their gender identity.

Title IX bars educational institutions that receive federal funds from discriminating against students and employees on the basis of their gender.

Title IX is worded almost exactly the same as Title VII, and rulings interpreting Title VII are used to evaluate claims brought under Title IX.