Hively v. Ivy Tech

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  • United States federal courts

Hively v. Ivy Tech Community College of Indiana was a case argued before the United States Court of Appeals for the 7th Circuit. The case centered on whether Title VII of the Civil Rights Act (Act) prohibited discrimination in the workplace on the basis of sexual orientation. On April 4, 2017, in an en banc opinion authored by the court's chief judge, Diane Wood, the court held that Title VII prohibited discrimination in the workplace on the basis of sexual orientation. The court's decision in Hively was the first time that a federal appeals court ruled that discrimination on the basis of sexual orientation in the workplace was a violation of the Act’s requirements. The ruling did not create a nationwide precedent, but all states within the jurisdiction of the Seventh Circuit must abide by the judgment. Indiana, Illinois, and Wisconsin are within the Seventh Circuit's jurisdiction. Ivy Tech opted not to appeal the decision to the U.S. Supreme Court and instead announced they would pursue a challenge to Hively's claims at trial.

Relatedly, on July 6, 2017, the Eleventh Circuit Court of Appeals denied review before the full court of a March 2017 three-judge circuit panel opinion in Evans v. Georgia Regional Hospital. A divided panel held in Evans that Title VII of the Civil Rights Act did not prohibit workplace discrimination on the basis of sexual orientation. The split between circuits creates an avenue for review by the U.S. Supreme Court. Lambda Legal, which represented Evans in her appeal before the Eleventh Circuit, announced they would appeal the Eleventh Circuit's denial of en banc review to the U.S. Supreme Court. Rule 10 of the U.S. Supreme Court's rules of procedure states that while Supreme Court review of such appeals is discretionary, the court considers when "a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter" as indicative of the character of reasons the court considers for granting certiorari to review a case. A decision on whether to hear the appeal from the Eleventh Circuit was expected to come during the court's October 2017 term.

Question presented: "The question before us is not whether this court can, or should, 'amend' Title VII to add a new protected category to the familiar list of 'race, color, religion, sex, or national origin.' ... Obviously that lies beyond our power. We must decide instead what it means to discriminate on the basis of sex, and in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex. This is a pure question of statutory interpretation and thus well within the judiciary’s competence."

Case background

Northern District of Indiana

On August 15, 2014, Kimberly Hively, appearing as a pro se plaintiff, filed a two-count complaint against Ivy Tech Community College of Indiana (Ivy Tech) in federal court. Hively, a lesbian, alleged in her complaint that she was denied full-time employment and promotions on the basis of her sexual orientation in violation of both Title VII of the Civil Rights Act and 42 U.S.C. § 1981, which provide for equal rights under the law. On September 29, 2014, Ivy Tech filed a motion to dismiss Hively's complaint, arguing she failed to state a claim on which a court could grant relief and that her complaint should be dismissed under federal rules of civil procedure. Ivy Tech argued that sexual orientation was not a category entitled to special, protected classification under Title VII or § 1981 and, therefore, the court could not grant relief to Hively. Hively filed an amended complaint on November 12, 2014, alleging that sexual orientation should be protected under federal law. She further referenced provisions in Ivy Tech's handbook indicating that Ivy Tech's policy was not to discriminate on the basis of sexual orientation. Ivy Tech filed a reply in support of its motion to dismiss on November 21, 2014.

On March 3, 2015, in an opinion by Judge Rudy Lozano, the court dismissed Hively's complaint. Judge Lozano dismissed Hively's Title VII claim under precedent of the Seventh Circuit Court of Appeals. In Judge Lozano's words, "While Title VII expressly prohibits employers from refusing to hire employees 'because of [their] sex,' the Seventh Circuit has held that 'Congress intended the term sex to mean biological male or biological female, and not one's sexuality or sexual orientation. ... Thus, 'harassment based solely upon a person's sexual preference or orientation ... is not an unlawful employment practice under Title VII.'" Further relying on Seventh Circuit precedent, Judge Lozano also dismissed Hively's § 1981 complaint, holding that only claims alleging racial discrimination may be brought under § 1981 and that discrimination claims based on sexual orientation were not cognizable under § 1981. Hively appealed to the Seventh Circuit Court of Appeals.

Seventh Circuit - panel

Hively and Ivy Tech presented arguments before a three-judge panel of the Seventh Circuit Court of Appeals comprised of William Bauer, Ken Ripple, and Ilana Rovner. On July 28, 2016, the panel affirmed the judgment of the district court. In an opinion by Judge Rovner, she noted the court's sympathy for Hively's case, but was bound by precedent to rule in favor of Ivy Tech. In her words, "it seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it … many of the federal courts to consider the matter have stated that they do not condone it … and this court undoubtedly does not condone it … 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."

Seventh Circuit - en banc

After a majority of the judges in active service on the Seventh Circuit Court of Appeals voted to rehear the case en banc, the full appellate panel heard arguments on November 30, 2016. On April 4, 2017, in an opinion by the circuit court's chief judge, Diane Wood, the court reversed and remanded the district court, concluding that Title VII of the Civil Rights Act (Act) prohibited discrimination of the basis of sexual orientation because such discrimination constituted a form of sex discrimination. Sex discrimination is prohibited explicitly under the Act.

In Judge Wood's opinion, she noted,

“

Ivy Tech sets great store on the fact that Congress has frequently considered amending Title VII to add the words 'sexual orientation' to the list of prohibited characteristics, yet it has never done so. Many of our sister circuits have also noted this fact. In our view, however, it is simply too difficult to draw a reliable inference from these truncated legislative initiatives to rest our opinion on them. The goalposts have been moving over the years, as the Supreme Court has shed more light on the scope of the language that already is in the statute: no sex discrimination. ... It is therefore neither here nor there that the Congress that enacted the Civil Rights Act in 1964 and chose to include sex as a prohibited basis for employment discrimination (no matter why it did so) may not have realized or understood the full scope of the words it chose. Indeed, in the years since 1964, Title VII has been understood to cover far more than the simple decision of an employer not to hire a woman for Job A, or a man for Job B. The Supreme Court has held that the prohibition against sex discrimination reaches sexual harassment in the workplace ... including same-sex workplace harassment ... and it reaches discrimination based on a person’s failure to conform to a certain set of gender stereotypes ... It is quite possible that these interpretations may also have surprised some who served in the 88th Congress. Nevertheless, experience with the law has led the Supreme Court to recognize that each of these examples is a covered form of sex discrimination. ... The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.

”

Concurring opinions

Judge Richard Posner wrote a concurring opinion in which he advocated for interpreting the statute under what he dubbed judicial interpretive updating, that is a manner of interpretation which "can mean giving a fresh meaning to a statement (which can be a statement found in a constitutional or statutory text)—a meaning that infuses the statement with vitality and significance today." Based on this interpretative view, Posner concluded that "the most tenable and straightforward ground for deciding in favor of Hively is that while in 1964 sex discrimination meant discrimination against men or women as such and not against subsets of men or women such as effeminate men or mannish women, the concept of sex discrimination has since broadened in light of the recognition, which barely existed in 1964, that there are significant numbers of both men and women who have a sexual orientation that sets them apart from the heterosexual members of their genetic sex (male or female), and that while they constitute a minority their sexual orientation is not evil and does not threaten our society. Title VII in terms forbids only sex discrimination, but we now understand discrimination against homosexual men and women to be a form of sex discrimination; and to paraphrase Holmes, 'We must consider what this country has become in deciding what that [statute] has reserved.'"

Judge Joel Flaum wrote an opinion concurring in part and concurring in the judgment which was joined by Judge Ken Ripple. In his opinion, Flaum noted that the enacted text of Title VII provided sufficient justification to bring a claim of discrimination on the basis of sexual orientation because, in his view, the plain text reading of the term homosexual meant sexual attraction to those of the same sex. Thus, one could not consider a person's homosexuality without accounting for their sex.

Dissenting opinion

Judge Diane Sykes wrote a dissenting opinion which was joined by Judges William Bauer and Michael Kanne. Bauer sat on the three-judge circuit panel that first heard the case at the appellate level. In her opinion, Judge Sykes held that the majority's interpretation of the statute was not faithful to the statutory text as the text would have been understood at the time the statute was adopted. In advocating for a textualist interpretation of the statute, Judge Sykes noted,

“

Judicial statutory updating, whether overt or covert, cannot be reconciled with the constitutional design. The Constitution establishes a procedure for enacting and amending statutes: bicameralism and presentment. ... Needless to say, statutory amendments brought to you by the judiciary do not pass through this process. That is why a textualist decision method matters: When we assume the power to alter the original public meaning of a statute through the process of interpretation, we assume a power that is not ours. The Constitution assigns the power to make and amend statutory law to the elected representatives of the people. However welcome today’s decision might be as a policy matter, it comes at a great cost to representative self-government. ... The court’s new liability rule is entirely judge-made; it does not derive from the text of Title VII in any meaningful sense. The court has arrogated to itself the power to create a new protected category under Title VII. Common-law liability rules may judicially evolve in this way, but statutory law is fundamentally different. Our constitutional structure requires us to respect the difference. It’s understandable that the court is impatient to protect lesbians and gay men from workplace discrimination without waiting for Congress to act. Legislative change is arduous and can be slow to come. But we’re not authorized to amend Title VII by interpretation. The ordinary, reasonable, and fair meaning of sex discrimination as that term is used in Title VII does not include discrimination based on sexual orientation, a wholly different kind of discrimination. Because Title VII does not by its terms prohibit sexual orientation discrimination, Hively’s case was properly dismissed.

”

Impact

The April 2017 decision in Hively was the first time that a federal appeals court ruled that discrimination on the basis of sexual orientation in the workplace was a violation of the Act’s requirements. The judgment was binding only in states within the jurisdiction of the Seventh Circuit: Indiana, Illinois, and Wisconsin. Ivy Tech opted not to appeal the decision to the U.S. Supreme Court and instead announced they would pursue a challenge to Hively's claims at trial.

Relatedly, on July 6, 2017, the Eleventh Circuit Court of Appeals denied review before the full court of a March 2017 three-judge circuit panel opinion in Evans v. Georgia Regional Hospital. A divided panel held in Evans that Title VII of the Civil Rights Act did not prohibit workplace discrimination on the basis of sexual orientation. The split between circuits creates an avenue for review by the U.S. Supreme Court. Lambda Legal, which represented Evans in her appeal before the Eleventh Circuit, announced they would appeal the Eleventh Circuit's denial of en banc review to the U.S. Supreme Court. Rule 10 of the U.S. Supreme Court's rules of procedure states that while Supreme Court review of such appeals is discretionary, the court considers when "a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter" as indicative of the character of reasons the court considers for granting certiorari to review a case. A decision on whether to hear the appeal from the Eleventh Circuit was expected to come during the court's October 2017 term.

See also

• United States District Court for the Northern District of Indiana
• United States Court of Appeals for the 7th Circuit
• Evans v. Georgia Regional Hospital

External links

• United States District Court for the Northern District of Indiana website
• United States Court of Appeals for the 7th Circuit website