WASHINGTON — A federal appeals court on Thursday rejected a woman's claim that existing civil rights law protects against sexual orientation discrimination — ruling that only the Supreme Court or Congress can make that the law.
"Kimberly Hively has failed to state a claim under Title VII [of the Civil Rights Act of 1964 for sex discrimination," the 7th Circuit Court of Appeals held in its decision in Hively's appeals. "[H]er claim is solely for sexual orientation discrimination which is beyond the scope of the statute."
In ruling against Hively's claim — that sexual orientation discrimination should be barred under Title VII as a type of sex discrimination — the court, primarily, pointed to a series of rulings from the appeals court beginning in 1984 and continuing through 2000 in which the court found that anti-LGBT discrimination was not covered by Title VII.
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."
In the wake of the EEOC's decision, Rovner acknowledged that "the district courts—the laboratories on which the Supreme Court relies to work through cutting‐edge legal problems—are beginning to ask whether the sexual orientation‐denying emperor of Title VII has no clothes."
She even acknowledged the fundamental correctness of the EEOC's logic:
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. And we can see no rational reason to entertain sex discrimination claims for those who defy gender norms by looking or acting stereotypically gay or lesbian (even if they are not), but not for those who are openly gay but otherwise comply with gender norms.
Nonetheless, Rovner concluded that the 7th Circuit should extend its prior decisions unanimously concluding that sexual orientation discrimination is not barred under Title VII, given that Congress has repeatedly rejected legislation to expand protections to include sexual orientation discrimination explicitly and the Supreme Court has declined to address the issue.
"Perhaps the writing is on the wall," Rovner wrote of a change, but concluding, "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."
Judge Kenneth Ripple joined in the portion of Rovner's decision holding that Title VII does not include sexual orientation protections, but not the extended discussion on the EEOC ruling and emerging law on the viability of drawing a distinction between sex discrimination claims and sexual orientation discrimination claims.