Americans enjoy a fundamental right to marry, regardless of whether they are straight, bisexual, or gay. Yet, in more than half of the states, “a person can be married on Saturday and then fired on Monday for just that act,” as one federal court explained in a recent opinion.
There is no federal law that explicitly protects workers from discrimination on the basis of sexual orientation. Moreover, while there are very strong arguments that existing protections against gender discrimination are broad enough to protect sexual minorities in the workplace, the courts have largely rejected these arguments. As a result, if you live in one of the 28 states that does not forbid discrimination against gay and bisexual workers, you can be fired because of the person you love.
A federal appeals court appears poised to change that, however, at least in the three states overseen by that court. And should the United States Court of Appeals for the Seventh Circuit hold, in a case known as Hively v. Ivy Tech Community College, that current law already protects workers who are attracted to members of the same sex, the case would likely be on the fast track to the Supreme Court.
Hively, or a similar case, could transform the nation’s LGBT rights landscape no less than the Court’s marriage equality decision in Obergefell v. Hodges. And there are strong signs that the Seventh Circuit is prepared to rule in favor of workplace equality.
The courts’ incoherent approach to discrimination
To understand the issues at stake in Hively, you first need to understand a strange distinction that courts have drawn between discrimination against gay employees and discrimination against employees who do not comply with traditional gender roles.
Federal law prohibits discrimination “because of” a worker’s “race, color, religion, sex, or national origin.” This is very broad language. As Justice William Brennan explained in a seminal case, in passing this law “Congress made the simple but momentous announcement that sex, race, religion, and national origin are not relevant to the selection, evaluation, or compensation of employees.”
It’s also language that’s broad enough to encompass discrimination on the basis of sexual orientation. As Chief Justice John Roberts, of all people, asked during oral arguments in Obergefell, “if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?” An employer who permits male employees to be attracted to women but doesn’t permit female employees to be attracted to women engages in sex discrimination, plain and simple.
For the most part, however, the courts have not given the federal ban on discrimination “because of . . . sex” its full meaning, instead insisting that Congress must explicitly extend federal anti-discrimination law to cover discrimination based on “sexual orientation” before such a ban will be enforced. As one federal appeals court concluded, “harassment on the basis of sexual orientation has no place in our society. Congress has not yet seen fit, however, to provide protection against such harassment.”
Yet, while the courts have largely refused to protect against this one form of discrimination, the Supreme Court has read the law broadly to shield against another form of gender discrimination. In Price Waterhouse v. Hopkins, a major accounting firm refused to make one of its women employees a partner, at least in part because many of the existing partners viewed her as too manly. One said she was “macho.” Another said she should take “a course at charm school.” A third advised her to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”
A male employee can be fired for being gay, but only if they aren’t into fashion.
Price Waterhouse held that this kind of gender stereotyping is not allowed. As Justice Brennan explained, “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for ‘[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.’”
This holding is very much at odds with the various court decisions holding that discrimination against gay and bisexual employees is not forbidden. As Judge Ilana Rovner explained in the Seventh Circuit panel’s decision in Hively,
Discrimination against gay, lesbian, and bisexual employees comes about because their behavior is seen as failing to comply with the quintessential gender stereotype about what men and women ought to do — for example, that men should have romantic and sexual relationships only with women, and women should have romantic and sexual relationships only with men.
Anti-gay discrimination, in other words, is a form of sex stereotyping. It makes assumptions about who men or women should form partnerships with. And it should be forbidden by Price Waterhouse.
A legal regime where butch lesbians have more rights than femmes
Yet, as Judge Rovner explained in her Hively opinion, the courts have not seen things this way, and Rovner felt bound by those prior decisions. Maintaining this fiction that discrimination based on sexual orientation is not a form of sex stereotyping, however, has led to absurd results.
Some courts have held that federal civil rights law may not be used at all to protect victims of anti-gay discrimination, leading to “the absurd conclusion . . . that the law protects effeminate men from employment discrimination, but only if they are (or are believed to be) heterosexuals.” Others have reached less drastic, but still quite odd results. As Rovner lays out:
our understanding of Title VII leaves us with a somewhat odd body of case law that protects a lesbian who faces discrimination because she fails to meet some superficial gender norms — wearing pants instead of dresses, having short hair, not wearing make up — but not a lesbian who meets cosmetic gender norms, but violates the most essential of gender stereotypes by marrying another woman.
The law, as it exists in many courts, “protects ‘flamboyant’ gay men and ‘butch’ lesbians but not the lesbian or gay employee who act and appear straight.” A male employee can be fired for being gay, but only if they aren’t into fashion.
There is a strong early sign, however, that the Seventh Circuit wants to eliminate this anomaly. Judge Rovner wrote her opinion in Hively on behalf of a three-judge panel — most court of appeals decisions are disposed of this way. Last Tuesday, however, the full Seventh Circuit announced that it would rehear the case using an unusual procedure known as en banc review.
En banc hearings are rarely granted, and when they are granted in a case where existing appeals court precedents clearly require the outcome reached by the three-judge panel, that is often a sign that the full court wishes to overrule those precedents. The fact that Judge Rovner spent much of her Hively opinion criticizing these precedents also suggests that they won’t be around very long.
If the full Seventh Circuit does hold that current federal law prohibits discrimination based on sexual orientation, that will place the Seventh Circuit at odds with several other courts of appeals — and the Supreme Court typically steps in to resolve these conflicts.
Add into the mix the fact that the Supreme Court is likely to be more liberal in a year than it has ever been at any point in the Court’s history, and that opens up the very real possibility that workplace discrimination on the basis of sexual orientation will be illegal throughout the entire nation.