Federal Appeals Court Holds That Sexual Orientation Discrimination Is Unlawful

Last month, the U.S. Court of Appeals for the Seventh Circuit in Hively v. Ivy Tech Community College of Indiana, became the first federal appeals court in the country to hold that Title VII, the federal anti-discrimination law prohibiting discrimination in employment on the basis of sex, prohibits discrimination on the basis of to an employee’s sexual orientation as well.


The decision is significant on many levels.  It is an en banc decision, which means that it was heard by all members of the Court of Appeals and not a three-judge panel (in fact, the decision reversed an earlier decision of a three-judge panel).  It is also in contrast to two other recent federal appellate decisions which held that the definition of “because of sex” in Title VII did not extend to sexual orientation because Congress did not specifically include sexual orientation in its definition.


Of particular significance is how the judges on the Seventh Circuit approached the issue of what a judge’s proper role in interpreting a statute is.  If you pay any attention to how judicial appointments are discussed in political debate, you hear candidates promising to appoint judges who don’t “legislate from the bench” and decrying so-called “activist judges” whom they claim do exactly that.  You also hear judicial nominees and judicial candidates promising not to legislate from the bench and carry out the intent of the legislature that enacted the law in the first place.  That debate over a judge’s role in interpreting a statute has long been at the core of the debate over how to interpret the phrase “because of sex” not only in Title VII, but in state laws as well that prohibit sex discrimination in employment.  The reasoning for not extending protection from discrimination to sexual orientation has been along the lines that since Congress chose not to expressly extend the statute’s protection against sex discrimination to include a prohibition on discrimination because of sexual orientation, the Courts should not do so either.  In Hively, however, Circuit Judge Posner (by no means a liberal “judicial activist”) took issue with that reasoning.  Noting in a concurring opinion that “[s]tatutes and constitutional provisions frequently are interpreted on the basis of present need and present understanding rather than original meaning,” Judge Posner aptly stated:


[I]t has taken our courts and our society a considerable while to realize that sexual harassment, which has been pervasive in many workplaces (including many Capitol Hill offices and, notoriously, Fox News, among many other institutions), is a form of sex discrimination.  It has taken a little longer for realization to dawn that discrimination based on a woman’s failure to fulfill stereotypical gender roles is also a form of sex discrimination.  And it has taken still longer, with a substantial volume of cases struggling and failing to maintain a plausible, defensible line between sex discrimination and sexual-orientation discrimination, to realize that homosexuality is nothing worse than failing to fulfill stereotypical gender roles.


What does the Hively case mean in Ohio?  It is not binding in Ohio because the Seventh Circuit Court of Appeals covers only Wisconsin, Illinois and Indiana (where the case arose).  However, the Sixth Circuit Court of Appeals, which does cover Ohio (as well as Michigan, Kentucky and Tennessee), is scheduled to hear arguments later this year in a similar case from Michigan.  It will be difficult for the judges hearing that case to disregard not only because of the outcome, but because it was an en banc decision.  Judge Posner, in particular, is held in high regard by more conservative judges, and it will be interesting to see how they respond to his reasoning in extending Title VII’s protection to sexual orientation.  We will keep you informed.

Ohio attorney Mark Herron has been practicing law in Cleveland and Northeast Ohio for over 20 years. Mark opened his law firm in Cleveland in 1993 and since then has concentrated his practice in a variety of areas, including employment law, bankruptcy law, domestic relations law, personal injury, insurance law, business law and litigation.

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