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Seventh Circuit Reluctantly Rejects Lesbian Bias Claim

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Could Judge Richard Posner be the key judge in any potential Seventh Circuit rethinking of its approach to sexual orientation discrimination claims?
Could Judge Richard Posner be the key figure in any potential Seventh Circuit rethinking of its approach to sexual orientation discrimination claims?

Deferring to precedents it described as “illogical,” a three-judge panel of the Chicago-based US Seventh Circuit Court of Appeals ruled on July 28 that a lesbian professor could not sue a South Bend, Indiana, community college for sexual orientation discrimination under Title VII of the 1964 Civil Rights Act. In doing so, the panel rejected her argument that anti-gay discrimination is a form of sex discrimination prohibited by that law.

That legal question has taken on renewed vitality since July 20015, when the Equal Employment Opportunity Commission (EEOC), the agency that enforces Title VII, ruled that David Baldwin, a gay air traffic controller, could bring such a claim against the federal Transportation Department.

Despite the panel’s dim view of existing Seventh Circuit precedents on the question, it concluded it was bound by them.

Panel says “illogical” precedent blocks professor’s suit under 1964 Civil Rights Act

Kimberly Hively, a part-time instructor at Ivy Tech Community College since 2000, applied six times for full-time positions for which she claims to be qualified, but she was always turned down and her part-time contract was not renewed in July 2014. By that time, she had already filed a complaint with the EEOC, representing herself, about 18 months ahead of that agency’s breakthrough ruling on sexual orientation claims.

The EEOC’s new posture is not binding on federal courts.

Hively did not file a complaint with the South Bend human rights agency because that city’s anti-discrimination law, though amended in 2012 to include sexual orientation, explicitly exempts state-operated educational institutions from its reach. Indiana has no state law forbidding sexual orientation discrimination.

Though the EEOC concluded it did not have jurisdiction, it sent Hively a “right to sue” letter, and she filed her claim in federal court in August 2014. The college responded with a motion to dismiss, arguing that sexual orientation discrimination claims are not covered under Title VII. In March 2015, District Judge Rudy Lozano, while saying he was “sympathetic” to Hively’s arguments, granted the college’s motion, citing a Seventh Circuit decision from 2000 and a 2010 decision by a US district court in Indiana.

The fate Hively suffered in the district court shows the perils of individuals trying to navigate federal employment law without legal representation. A well-versed lawyer might have found a way to construct a 14th Amendment Equal Protection claim on her behalf, which could be directed against individual school officials if she could allege sufficient facts suggesting they refused to consider her applications because she is a lesbian. There would, however, be no guarantee of success because the Supreme Court has yet to rule on whether sexual orientation discrimination claims against public officials are entitled to heightened or strict scrutiny.

Attorney Gregory Nevins from Lambda Legal’s Atlanta office represented her on appeal to the Seventh Circuit, where oral arguments took place last September. The long wait before the panel ruled is surprising given the existing circuit precedent.

Judge Ilana Rovner’s opinion obviously took so long because the majority of the panel was not content just to issue a pro forma dismissal relying on that precedent.

Rovner was joined by Senior Judges William Bauer and Kenneth Ripple in citing circuit precedent as grounds for dismissing Hively’s claim, but a second part of her opinion, joined only by Judge Ripple, provides a lengthy and detailed discussion of how last year’s EEOC’s Baldwin decision spawned an intense debate among district courts nationwide about how older precedents are out-of-step with where the US has moved on LGBT rights.

Rovner cited numerous district court decisions — particularly from circuits where there were no adverse appeals court precedents — in which judges followed the EEOC’s reasoning to find that discrimination because of sexual orientation is “necessarily” sex discrimination.

As far back as 1989, in the Supreme Court’s ruling in Price Waterhouse v. Hopkins — involving a woman denied a partnership because she was perceived as inadequately feminine in her dress and conduct — discrimination against an employee because they fail to meet their employer’s sex-stereotypical views about how they should present themselves was accepted as evidence of sex discrimination.

Since then, some district courts have extended protection under Title VII to LGBT plaintiffs who could plausibly allege that they encountered discrimination because of sex stereotypes, but other courts have refused to take such cases, criticizing them as attempts to “bootstrap” coverage for sexual orientation into Title VII against the intent of Congress. What has emerged is a hodgepodge of decisions, resulting in the odd situation that — at least in some circuits — a gender-nonconforming gay plaintiff may be protected under Title VII using the stereotyping theory, but a “straight-acting” gay plaintiff would have no protection.

Rovner noted the irrationality of all this, but also the challenge of sorting out the discrepancy.

“Although it seems likely that most of the causes of discrimination based on sexual orientation ultimately stem from employers’ and co-workers’ discomfort with a lesbian woman’s or a gay man’s failure to abide by gender norms, we cannot say that it must be so in all cases,” she wrote. “Therefore we cannot conclude that the two must necessarily be coextensive unless or until either the legislature or the Supreme Court says it is so.”

Rovner pointed out that Kimberly Hively made no specific allegations of gender non-conformity, other than the implicit contention that being a lesbian, as such, was gender non-conforming. And despite all the advances in LGBT rights at the Supreme Court, which the judge noted, Rovner concluded that in none of those cases has the high court said anything dealing directly with whether anti-gay discrimination must be treated as a form of sex discrimination under Title VII.

She was not unmindful, however, of the stark legal anomaly now existing after last year’s marriage equality decision.

“The cases as they do stand, however, create a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act,” she wrote, adding, “From an employee’s perspective, that right to marriage might not feel like a real right if she can be fired for exercising it.”

Rover found it “curious” that “the Supreme Court has opted not to weigh in on the question of whether Title VII’s prohibition on sex-based discrimination would extend to protect against sexual orientation discrimina­tion” and that even in last year’s “watershed” marriage equality ruling the court “made no mention of the stigma and injury that comes from excluding lesbian, gay, and bisexual persons from the workforce or subjecting them to un-remediable harassment and discrimina­tion.”

Rovner was very critical of the Seventh Circuit’s precedent, writing, “It may be that the rationale appellate courts, including this one, have used to distinguish between gender non-conformity discrimination claims and sexual orientation discrimination claims will not hold up under future rigorous analysis. It seems illogical to entertain gender non-conformity claims under Title VII where the non-conformity involves style of dress or manner of speaking, but not when the gender non-conformity involves the sine qua non of gender stereotypes — with whom a person engages in sexual relationsh­ips.”

She then quoted Justice Anthony Kennedy’s marriage equality decision, pointing out how “new insights and societal understand­ings” could lead to changes in the law. Society, she concluded, was “unlikely” to tolerate this anomalous situation for long.

“Perhaps the writing is on the wall,” Rovner wrote. “But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent.”

This conclusion is not totally accurate. The full Seventh Circuit, considering this question en banc, could decide to overrule the prior precedent within the circuit without waiting for Supreme Court or congressional action. Of the nine active judges on the circuit — Ripple and Bauer, as senior judges, would not participate in en banc reconsideration of any precedent — three are Democratic appointees and six Republican appointees, including Rovner. Assuming the three Democratic appointees agree with Rovner’s view of the precedent, only one other GOP appointee would be needed to overturn it. Richard Posner could be the prime candidate for that. He wrote the circuit’s magnificent marriage equality decision in 2014, which reflected his strong openness to reconsidering his views on LGBT issues, a point he later reiterated in a law review article musing about his changing views since he was appointed to the court by Ronald Reagan in the 1980s.

On the other hand, it is possible that this opinion took so long to get out because some attempt was made within the judges’ chambers to provoke a spontaneous en banc reconsideration, but it was unsuccessful. At this point, we simply cannot know.

Updated 5:17 pm, July 20, 2018
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