CHICAGO (CN) – At oral arguments Wednesday, the full Seventh Circuit clearly leaned toward granting gay and lesbian employees Title VII protection against being fired for their sexual orientation.
Under current federal law, a gay or lesbian employee can get married to their same-sex partner on Saturday, and be fired for exercising that right on Monday. An employer needs no other reason.
However, Title VII of the Civil Rights Act has been understood since 1989 to protect heterosexual employees from gender stereotyping.
This reading has created a very murky legal landscape where employers can legally fire an employee if they believe him or her to be gay, but cannot fire them for displaying characteristics stereotypical of the other sex.
As Seventh Circuit Judge David Hamilton framed the difficulty Wednesday, “I have trouble distinguishing looking gay from being gay.”
Chief Judge Diane Wood put it another way, joking that, “It’s only the phonies that get protection.”
Plaintiff Kimberly Hively began teaching as a part-time adjunct professor at Ivy Tech Community College in Indiana in 2000. She applied for six full-time promotions between 2009 and 2014, but says she was rejected for all of them, despite her sterling student reviews. Her contract was terminated in 2014.
Hively filed a Title VII lawsuit in federal court alleging she was denied full time employment because she is a lesbian, but the case was immediately dismissed because Seventh Circuit precedent asserts that Title VII anti-discrimination laws apply to sex but not sexual orientation.
A Seventh Circuit panel reluctantly affirmed that ruling in July, but the full court agreed to rehear the matter. It will be the first appellate court to make a decision on the issue after the legalization of same-sex marriage.
Hively’s attorney, Gregory Nevins with the Lambda Legal Defense and Education Fund, told the full Seventh Circuit at oral arguments Wednesday that his client was not asking it to redefine “sex” to include sexual orientation.
Rather, “what you have is an incoherent rule,” Nevins said.
A female employee “can’t be fired for driving a Harley, or having Bears season tickets,” the attorney told the court, listing stereotypical male interests, but can be fired for being a lesbian.
“The idea that women should be attracted only to men is the ultimate gender stereotype,” Nevins said. “That absolutely should be covered [by Title VII.]”
Judge Wood agreed.
“Isn’t that a built-in stereotype, that if you are a biological woman, you are attracted to men?” she asked.
Nevins argued that the court should consider whether a man could similarly be fired for being attracted to a woman. If not, then firing a woman for the same attraction should be considered sex discrimination, he said.
Gail Coleman, arguing briefly for the Equal Employment Opportunity Commission, reiterated Nevins’ argument.
“The quintessential gender discrimination is the assumption that a woman is attracted to men,” Coleman said.
Ivy Tech’s counsel, John Maley with Barnes & Thornburg, struggled under rapid-fire questioning to defend his client’s position that the court should uphold precedent.
Maley had no ready response when Judge Frank Easterbrook repeatedly pressed him to explain why Hively’s case does not make a claim for sex discrimination “under exactly the same reasoning as Loving [v. Virginia],” the U.S. Supreme Court case that legalized interracial marriage and was decisive precedent for the legalization of same-sex marriage last year.
“You can’t just stand there and say [Loving] is different,” Judge Wood said. “Why?”
Judge Richard Posner interjected, “What is the cause of lesbianism?”
That provoked Judge William Bauer to joke, “It’s not just ugly men?”
Maley said homosexuality is an “immutable trait” found in some people, to which Posner responded, “Why doesn’t that make them a different sex?”
Posner continued, “If it’s part of your genetic make-up then you are very different than other women.”
Judge Posner has a long-standing interest in the biological roots of sexuality, which he examined in his 1992 book “Sex and Reason.”
The judge clarified, “[Straight women and lesbians] are both women, but very different types.”
Maley attempted to redirect the discussion to what Congress intended to protect when it enacted the Civil Rights Act, but Posner again interjected.
“So you think we are bound by what people thought in 1964?” he asked.
In an implicit reference to President-elect Donald Trump’s recent tweet supporting criminal penalties for flag-burning, Posner raised the late Supreme Court Justice Antonin Scalia’s support for First Amendment protection of flag burning.
Posner asked Maley if he thought Scalia went back to the U.S. Constitution and found, “Oh, burn things. That’s a form of speech.”
Maley repeatedly told the Seventh Circuit that any significant expansion of civil rights should be left for Congress to decide, not the courts.
However, he was unable to identify anyone, not even employers, who would be harmed by giving gay and lesbians more job protection, at which point Judge Ilana Rovner seemed to express sympathy for Maley’s attempts to defend the “position you have had to come here and espouse.”
As an aside, Chief Judge Wood noted, “It’s very odd to me that Ivy Tech is here.”
The college claims to “deplore” sexual orientation-based discrimination, but at the same time seeks “to defend [its] right to do it anyway,” Wood said.
Maley acknowledged the contradiction.
“At a procedural level, yes,” he said.
Throughout the argument, Judge Diane Sykes was the only judge who sharply questioned comparing the treatment of a heterosexual male employee with a lesbian employee. Rather, she said the relevant comparison should be a gay employee with a lesbian employee.
Nevins, speaking with reporters after the hearing, said he was pleased with argument.
The judges “were very engaged,” Nevins said. “It’s clear they understood exactly what our arguments were, so we’re optimistic.”