Sexual Orientation Discrimination in the Seventh Circuit and Comparison with New Jersey’s Law Against Discrimination

Here at the New Jersey Lawyers Blog we usually stick to New Jersey law (the name is probably a giveaway).  However, a federal decision this week in the United States Court of Appeals for the Seventh Circuit (with jurisdiction over appeals from the federal courts in Illinois, Indiana and Wisconsin) deserves mention.  In the case of Hively vs. Ivy Tech Community College of Indiana, the Seventh Circuit held that firing an employee because of her sexual orientation is illegal sex discrimination in violation of Title VII of the Civil Rights Act of 1964.  It became the first Federal appeals court to so hold.  It broke with many of its sister circuits.  The United States Supreme Court has never decided the issue.

Kimberly Hively was a part-time adjunct professor at Ivy Tech.  She applied for at least six full time teaching positions but was rejected each time.  Finally, her part-time contract was not renewed.  Hively was only lesbian.  She filed a complaint with the U.S. Equal Employment Opportunity Commission (the “EEOC”) alleging sex discrimination in violation of Title VII because she claimed that had been terminated because of her orientation.  The EEOC issued a right to sue letter, and she filed suit in the United States District Court for the Northern District of Indiana pro se (on her own without a lawyer).  The District Court dismissed her suit, ruling that discrimination because of sexual orientation was not protected by Title VII.  She appealed to the Seventh Circuit.  Initially a three judge panel of the Seventh Circuit agreed with the District Court and ruled against her.  However, the entire court then voted to hear her appeal en banc (by the whole court), and reversed its prior decision.

The Seventh Circuit had several reasons for its holding.  First, in 1989 the Supreme Court held that the practice of gender stereotyping was illegal sex discrimination.  Then in 1998 it held that it made no difference whether or not the harasser was of the same or a different gender as the victim provided that the harassment was because of the victim’s gender.  It then reasoned that if the stereotype is that a woman should marry a man Hively would not have been fired if she had married a person of the other sex, then she was discriminated against because of her gender because she married a woman, a person of the same sex.

Second, there is a line of federal cases in which discrimination because of “non-conformity” in a protected sphere violated Title VII.  The most famous of these cases was Loving v. Virginia, were the U.S. Supreme Court struck down a Virginia law which prohibited white and black people from intermarrying.  Likewise the Supreme Court had held that a company could not hire men with school age children but refuse to hire women with similarly aged children.  Here, too, the court found, employers cannot discriminate against an employee based on the gender of the person they married.

Third, it is illegal to discriminate against someone because of a protected characteristic of a person they associate with.  Since the employer could not discriminate against Hively’s wife because of her gender, it could not discriminate against Hively because of her spouse’s gender either.

Finally, the court applied an outcome based test.  Changing the gender of either partner would have resulted in a different outcome ie, it would have resulted in an opposite sex marriage and thus no discriminating acts.  Thus, it was consideration of the gender of Hively and/or her partner which caused the wrongful employment actions, and thus it was illegal gender discrimination in violation of Title VII.

Because the case was being heard on a motion to dismiss, the Seventh Circuit had to take all the facts alleged by Hively alleged as true.  Therefore, rather than “winning,” Hivley’s case was sent back to the District Court.  However, now the District Court couldn’t find that sexual orientation discrimination wasn’t gender discrimination.  Rather it had to accept that this is the law, and determine whether Hivley’s factual allegations were true.

Fortunately, this has not been a question for New Jersey employees for many years.  New Jersey’s Law Against Discrimination expressly prohibits discrimination because of a person’s sex, and also because of a person’s sexual orientation.  It is not even a question in the Garden State.

McLaughlin & Nardi’s New Jersey employment lawyers represent employees who have been discriminated against because of their gender, sexual orientation, age or race.  Call (973) 890-0004 or email us to set up a consultation. We can help.