by Katie Eyer, Associate Professor, Rutgers Law School
Since the 1970s, gay and lesbian plaintiffs have raised the argument that discrimination on the basis of sexual orientation is, inherently and necessarily, sex discrimination under Title VII. Such arguments have long had strong doctrinal support. As early as 1978, the Supreme Court made clear that "treatment of a person in a manner which, but for that person's sex, would be different" is discriminatory and prohibited under Title VII. This standard is satisfied in each and every case of sexual orientation discrimination—since by definition in a sexual orientation discrimination case sex-based disparate treatment has occurred (a woman who is fired for marrying a woman would not have been fired for the same conduct had she been a man). Other arguments founded in well-established anti-discrimination doctrine, such as associational discrimination and gender stereotyping, have also been put forward.
And yet even after the Supreme Court’s decision in Price Waterhouse v. Hopkins—recognizing the doctrine of gender stereotyping, and holding categorically that an employer “may not take gender into account”—most courts have continued to reject the notion that sexual orientation discrimination could be considered a form of sex discrimination. Thus, while most courts did allow gay plaintiffs to bring narrower sex discrimination claims—focused on discrimination targeting deviations from gender-stereotypical appearance or mannerisms—every Court of Appeals until this week had held that sexual orientation itself was not categorically protected under Title VII.
On Tuesday, breaking from this history, the Seventh Circuit, sitting en banc, took a fresh look at the doctrine and concluded that “discrimination on the basis of sexual orientation is a form of sex discrimination.”
Thus, the Court observed inter alia:
“Hively alleges that if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her… This describes paradigmatic sex discrimination.