By any objective measure, the Seventh Circuit’s holdiing in Hively v. Ivy Tech Community College is unremarkable. The court ruled that Title VII of the Civil Rights Act of 1964 does not prohibit discrimination based upon sexual orientation. It’s been there before, but that was then. This is now.
Once again this court is asked to consider whether Title VII of the Civil Rights Act of 1964 protects employees from or offers redress for discrimination based on sexual orientation. This time, however, we do so in the shadow of a criticism from the Equal Employment Opportunity Commission (EEOC) that this court and others have continued to reflexively declare that sexual orientation is not cognizable under Title VII without due analysis or consideration of intervening case law.
The EEOC’s criticism has created a groundswell of questions about the rationale for denying sexual orientation claims while allowing nearly indistinguishable gender non‐conformity claims, which courts have long recognized as a form of sex‐based discrimination under Title VII. After a careful analysis of our precedent, however, this court must conclude that Kimberly Hively has failed to state a claim under Title VII for sex discrimination; her claim is solely for sexual orientation discrimination which is beyond the scope of the statute. Consequently, we affirm the decision of the district court.
The big difference this time was that the EEOC, the agency charged with administering Title VII, has determined that a law prohibiting sex discrimination should now prohibit sexual orientation discrimination.
The EEOC, the body charged with enforcing Title VII, came to this conclusion for three primary reasons. First, it concluded that “sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex.” (proffering the example of a woman who is suspended for placing a photo of her female spouse on her desk, and a man who faces no consequences for the same act). Second, it explained that “sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex,” in which an employer discriminates against lesbian, gay, or bisexual employees based on who they date or marry. Finally, the EEOC described sexual orientation discrimination as a form of discrimination based on gender stereotypes in which employees are harassed or punished for failing to live up to societal norms about appropriate masculine and feminine behaviors, mannerisms, and appearances.
Good arguments, all. But there is one problem standing in the way.
Our holdings and those of other courts reflect the fact that despite multiple efforts, Congress has repeatedly rejected legislation that would have extended Title VII to cover sexual orientation.
The Circuit opinion goes to great lengths to express that discrimination on the basis of sexual orientation is reprehensible. But Congress makes law, and Congress has yet to amend Title VII to include sexual orientation as a protected classification. It should, but it hasn’t.
And so, agenda-driven legalish pundits, who thought this time the court should finally give them what Congress has refused, have done what they could to spin the opinion to deceive the public as to the holding and, more significantly, the process. Making people stupider about law isn’t nearly as important as winning on an issue near and dear to their heart.
A clearly conflicted Judge Ilana Rovner, joined by Judge William Bauer, went on for more than 40 pages, however, detailing what Rovner described as “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.”
Addressing the Equal Employment Opportunity Commission’s 2015 decision — backing up Hively’s position — that sexual orientation discrimination is a type of sex discrimination barred under Title VII, Rovner wrote, “The idea that the line between gender non‐conformity and sexual orientation claims is arbitrary and unhelpful has been smoldering for some time, but the EEOC’s decision … threw fuel on the flames.”
The “paradoxical legal landscape” is, indeed, a real problem, and should serve as a driving force for Congress to address the fact that gay marriage is a right, no matter how retrograde some constituencies feel about it. And it’s just sound policy.
But the argument that troubles the court derives from a different problem as well, the mission creep of administrative agencies to further administrative agendas. The reason this is an issue is that Congress has rejected modification of Title VII in the past, and is largely incapable and unwilling to do its job now. So if Congress won’t change the law, regulatory agencies are going to do it on their own.
Is America in a post-Congress stage? Are courts only to defer to the “expertise” of administrative agencies? Does the reach of the law depend on the whims and political agenda of the person doing the reaching?
If you want the law to change, you don’t really care. You want the outcome, because it’s right! In this instance, there really isn’t any doubt that it’s right. That no moderately sentient being thinks employment discrimination on the basis of sexual orientation is okay. It’s absurd.
But how do we achieve this outcome? Lambda Legal tried to get the Seventh Circuit to disavow precedent in light of the EEOC’s mission creep, to disregard Congress’ refusal to give what they wanted the court to take. The opinion calls it strong evidence of congressional intent. Some might call it conclusive evidence because, well, it’s Congress deciding what Congress, under our system of government, gets to decide.
Part of the background giving rise to the paradox, however, reveals how baby steps, which seemed innocuous at the time, come back to be twisted for ulterior purposes. The sentence in Judge Rovner’s opinion, “The idea that the line between gender non‐conformity and sexual orientation claims is arbitrary and unhelpful has been smoldering for some time,” reflects one of those baby steps.
The phrase “gender non-conformity” refers to the Supreme Court’s decision in Price Waterhouse v. Hopkins, a sex discrimination holding that a woman can’t be discharged for not conforming to gender stereotypes. The rhetorical flourish of “gender non-conformity” takes a step further away from a straight-up sex discrimination analysis into areas where the Court didn’t go, but which, given the shifts in rhetoric over the past 27 years, doesn’t seem unreasonable. Hence, the unintended paradox, even if only created by an unintended rhetorical shift almost three decades later.
The problem remains that advocates have captured the administrative agencies, which would unilaterally create law that Congress has refused to enact, and now want courts to approve these laws as interpretative baby steps further away from what Congress did enact.
Should Congress do its job? Obviously. This is how a tripartite government is meant to function. But if it doesn’t give advocates what they want, does that make it acceptable for administrative agencies to manufacture law to suit their agendas and compensate for Congress’ failure? Be careful what you wish for, as there is an election coming up.
You may want this outcome very, very badly, but if things don’t go as you expect with this election, or the next, or the one after that, and eventually there will be an administration that gets to pick its bureaucrats instead of the ones you adore, the nation will be run by bureaucrats in their fiefdoms imposing their will upon America. This is not the way this nation was meant to function, and your agenda today will come at the expense of our fundamental system of checks and balances.
The Seventh Circuit doesn’t hate gays. Not even a little bit. It adhered to the law. That’s not a bad thing. Don’t try to spin it as if it is.