Last week there was a legit earthquake in the US legal system, and we hardly noticed. Between Gropey O’Reilly, Syria, and United Airlines re-accommodating that doctor’s face, we missed the fact that IT IS NOW ILLEGAL TO FIRE SOMEONE FOR BEING GAY. Holy shit, something good happened!!!
(If this does not meet your definition of “something good,” please GTFOH!)
The 7th Circuit held in Hively v. Ivy Tech Community College, No. 15-1720 that discrimination on the basis of sexual orientation is sex discrimination barred by Title VII of the 1964 Civil Rights Act. While it will undoubtedly be challenged in the Supreme Court, today — being a ruling by the highest court to address it thus far — it is the law of the land. This case itself is full of so much AWESOME and shows how far we’ve come as a society. Let’s Lawsplore!
Just the Facts
For 14 years, Kimberly Hively was an adjunct professor at Ivy Tech Community College in South Bend, Indiana. She applied for six full-time faculty positions at the school before being fired in 2014. Hively sued for sex discrimination, alleging that the school failed to promote her because she was an out lesbian. Ivy Tech moved to dismiss, arguing that there is no cause of action for sex discrimination based on orientation.
Meanwhile, Indiana was ginning up to pass its Religious Freedom Restoration Law, which allowed gayhaters free rein to discriminate in employment, housing and public accommodations. Because Jesus was quite clear when he gave the No Flower Arrangements for Adam and Steve sermon. Guess who signed the Happy Homophobes Law in 2015?
But at every stage of this case, Ivy Tech was at pains to say that it does not support discrimination against homosexuals. In the past, those in favor of discrimination laws have all relied on some version of “gays are icky, because THE BIBLE.” Two weeks after Trump was elected, Ivy Tech’s lawyer John Maley flatly refused to make that argument.
Judge Posner: Where is the strong reliance interest in retaining an obsolete definition of sex? Who’s going to be hurt if lesbians and male homosexuals have a little more job protection? […]
Maley: Your Honor, I’m unable to identify one. If this Court were to do so within this Circuit, employers would adjust accordingly.
Wait, what???? Homophobia has become so unacceptable that we hesitate to bring up the wee feefees of employers who don’t want to hire The Gays???
SHUT THE FRONT DOOR!
Sexual Orientation, Gender: Same Difference
In 1989, the Supreme Court held that it was illegal for employers to penalize female employees for being insufficiently feminine. Price Waterhouse executive Ann Hopkins was repeatedly passed over for promotion because she was deemed too “aggressive” for a woman. Instead her supervisor advised her to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.” The Court found that Price Waterhouse discriminated on the basis of sex because it penalized Hopkins for not conforming to gender stereotypes of how women should behave. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
By the same logic, the 7th Circuit said that employers are engaging in sexual stereotyping when they expect employees to fall in love with people of the opposite sex.
The counterfactual we must use is a situation in which Hively is a man, but everything else stays the same: in particular, the sex or gender of the partner.
Hively alleges that if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her.[…]
Viewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.
In other words, your boss can’t fire you because you don’t have the kind of sex he expects you to have based on whether you have ladybits or manparts.
Only the Phonies Get Protection
Since the Price Waterhouse case, courts have held tight to the idea that discrimination on the basis of sexual orientation is totally different from garden variety sex discrimination. But the Hively court pointed out how bizarre it would be for the law to protect Ann Hopkins who looked “butch,” but not protect Kimberly Hively, who is a lesbian.
Judge Posner: Price Waterhouse v. Hopkins seems to tell us that it violates Title VII to discriminate against a woman because she looks gay, and behaves outwardly as somebody who is gay. I have a hard time drawing a principled distinction between discrimination against somebody for looking gay and for being gay, and would invite your answer to that. […]
Judge Wood: So, in a sense, it’s only the phonies that get protection.
You can’t be fired for being FABULOUS, but getting canned because your boss finds out you got gay married five years ago is okay? Judge Wood cannot even with this foolishness.
The Legacy of Loving
In Loving v. Virginia, the Supreme Court struck down anti-miscegenation laws as racially discriminatory. Building on Loving, later courts found that employers were also barred from firing employees because they were in interracial relationships. By this logic, the 7th Circuit found that, if it’s illegal to fire someone because his wife is black, it must be illegal to fire him because his spouse is also a man.
This means that to the extent that the statute prohibits discrimination on the basis of the race of someone with whom the plaintiff associates, it also prohibits discrimination on the basis of the national origin, or the color, or the religion, or (as relevant here) the sex of the associate. No matter which category is involved, the essence of the claim is that the plaintiff would not be suffering the adverse action had his or her sex, race, color, national origin, or religion been different
Baby Boomer Judges, You Can’t Help But Love ‘Em
The oral argument in November had some hilarious moments, but it also showed aging judges trying to keep pace with sexual politics that are changing fast.
Judge Posner: Why do you think there are lesbians?
Judge Bauer: What was the question?
Judge Posner: Why do you think there’s this type of person?
Maley: The caselaw has cited to…
Judge Posner: This is not a caselaw question. What is the cause of lesbianism?
Maley: It’s now immutable characteristic is what medical professionals are saying.
Judge Bauer: It’s not just ugly men, huh?
At 90 years old, Judge Bauer is the Grandpa Simpson of the 7th Circuit. But the other Judges are cautiously groping their way to an equitable result here. Judge Posner goes on to speculate that perhaps lesbians are biologically different enough to be “really a different sex.” Which sounds kind of … out there. Unless you understand that he is trying very hard to extend non-discrimination protections beyond the realm of employment law.
Remember those sweethearts from the National Organizaton for Marriage? Having lost their fight against gay marriage at the Supreme Court they’ve now turned their attention to picking on trans kids, because of course they have. Ivy Tech’s arguments parsing sex discrimination and sexual orientation are exactly the same ones that undergird anti-trans legislation. If the Supreme Court upholds the idea that Hively was fired because she didn’t conform to gender stereotypes, then it will probably find that schools cannot discriminate against Gavin Grimm for failing to behave like a stereotypical boy. So, thanks for the weird rambling, Judge Posner!
It could happen, even with Gorsuch on the Court. Remember, gay marriage was decided while Scalia was still kicking up shit in DC. For today, we’ll just celebrate with a little Randy Rainbow song about Indiana’s RFRA law.
[Hively v. Ivy Tech Community College, No. 15-1720 / HuffPo / Ivy Tech’s Brief / Oral Argument in Hively, audio / Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) / Loving v. Virginia, 388 U.S. 1 (1967)]
An entire post without using the word FUCK? Doesn’t that deserve some kind of reward for being appropriately ladylike?