Everyone agrees that under Title VII of the Civil Rights Act of 1964, employers are forbidden from discriminating on the basis of sex. Are they also forbidden from discriminating on the basis of sexual orientation?
In a momentous decision earlier this week (Kimberly Hively v. Ivy Tech Community College of Indiana), with large implications for employers all over the country, a federal court of appeals ruled that they are. Superb opinions were delivered by both Judge Diane Wood, author of the majority opinion, and Judge Diane Sykes, author of the dissent.
As it turns out, Wood and Sykes disagree not only on how to interpret congressional enactments, but also on a different question, which is whether discrimination on the basis of sexual orientation has anything to do with impermissible stereotypes about the proper role of men and women.
The ruling is almost certainly headed for the Supreme Court, where the justices are likely to be divided. Justice Neil Gorsuch could cast the tie-breaking vote — and the best bet is that he will side with Sykes.
Until recently, most people, and most judges, thought that the issue was simple — and that nothing in Title VII bans private employers from discriminating against gays and lesbians. The Constitution applies only to the government, and so the only applicable restriction is the 1964 law’s prohibition on discrimination on the basis of “race, color, religion, sex, or national origin.”
Sex vs. Sexual Orientation
Numerous courts have agreed that there’s a big difference between discriminating on the basis of sex and discriminating on the basis of sexual orientation. If law is going to ban the latter, it has to be amended (which, by the way, Congress has repeatedly declined to do).
The case involved in this week’s ruling was brought by a former adjunct professor at an Indiana community college who claimed that her contract was not renewed because she is a lesbian. Capturing the longstanding view, and defending a form of “originalism,” Judge Sykes contended that the professor, Kimberly Hively, was not a victim of discrimination on the basis of sex.
In 1964, Sykes wrote, it was not “even remotely possible” that “a reasonable person competent in the English language would have understood that a law banning employment discrimination ‘because of sex’ also banned discrimination on the basis of sexual orientation.”
On that count, her argument is convincing. Back then, the enacting Congress, and those who approved of what it did, did not believe that the law was simultaneously forbidding discrimination against gays and lesbians.
Judge Wood responded by pointing to the text of the law. It does forbid discrimination on the basis of sex, and Hively alleged that if she had been a male, involved in a relationship with a woman, the school, Ivy Tech Community College, would have renewed her contract. In Wood’s words, this “describes paradigmatic sex discrimination,” for Hively was disadvantaged “because she is a woman.”
To Sykes’s argument that that the 1964 Congress would have disagreed, Wood invoked a 1998 decision by the Supreme Court, written by none other than Justice Antonin Scalia.
In that case, the court ruled that Title VII forbids sexual harassment inflicted by a man on a male victim — even though in 1964, people did not think that the ban on sex discrimination prohibited that form of sexual harassment. (Indeed, there is a good argument that almost no one in Congress believed that it prohibited sexual harassment at all.)
In the crucial passage, Scalia wrote that “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils.” In his view, “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
But Sykes had a strong rebuttal. Under Scalia’s approach, a victim of male-on-male sexual harassment would have to prove that he would not have been harassed if he had been female. In that way, Scalia was careful to connect his opinion to the statutory requirement of proof of discrimination on the basis of sex. In Sykes’s view, he maintained the firm line between sex discrimination (which the law forbids) and sexual-orientation discrimination (which the law does not forbid).
She sharpened her point by noting that an employer would be engaged in sex discrimination if it fired women, but not men, who were involved in same-sex relationships. That would be sex discrimination, rather than sexual-orientation discrimination.
Wood’s response was to deny that there is any line between the two — and hence to insist that its ruling would merely cover (in Justice Scalia’s words) “reasonably comparable evils.” In Wood’s view, Hively, a lesbian, “represents the ultimate case of failure to conform to the female stereotype.” Her “claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing.”
It is here, I think, that we get to the heart of the matter, and to what really divides Wood and Sykes.
Despite insisting on following the original meaning of the 1964 law, Sykes agrees that “the scope of Title VII is not limited by the subjective intentions of the enacting legislators.” Her conclusion is driven by her insistence that sexism and homophobia (her terms) “are separate kinds of prejudice that classify people in distinct ways based on different immutable characteristics.”
On that point, Wood disagrees, on the ground that a policy of discrimination on the basis of sexual orientation is really an objection to “gender non-conformity” and “is based on assumptions about the proper behavior for someone of a given sex.”
In the end, that disagreement explains why Sykes and Wood differ on whether Hively was a victim of sex discrimination. Resolving a question of that kind does not seem like the ordinary and even the appropriate role of the federal judiciary. But given the language of the 1964 law, forbidding discrimination on the basis of “sex,” it’s hard to see how to decide Hively’s case without resolving that question.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
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