{"id":51872,"date":"2017-04-05T14:20:35","date_gmt":"2017-04-05T18:20:35","guid":{"rendered":"http:\/\/www.gayfriendschat.com\/socialblog\/7th-circuit-says-anti-gay-discrimination-is-sex-discrimination-under-title-vii-an-analysis-of-the-ruling\/"},"modified":"2017-04-05T14:20:35","modified_gmt":"2017-04-05T18:20:35","slug":"7th-circuit-says-anti-gay-discrimination-is-sex-discrimination-under-title-vii-an-analysis-of-the-ruling","status":"publish","type":"post","link":"https:\/\/www.gayfriendschat.com\/socialblog\/7th-circuit-says-anti-gay-discrimination-is-sex-discrimination-under-title-vii-an-analysis-of-the-ruling\/","title":{"rendered":"7th Circuit Says Anti-Gay Discrimination is Sex Discrimination Under Title VII: An Analysis of the Ruling"},"content":{"rendered":"

7th Circuit Says Anti-Gay Discrimination is Sex Discrimination Under Title VII: An Analysis of the Ruling<\/b><\/p>\n

\"Kimberly<\/p>\n

Kimberly Hively<\/p>\n<\/div>\n

Yesterday, a federal appellate court held, in Hively v. Ivy Tech Community College<\/a><\/em>,\u00a0that Title VII of the Civil Rights Act, which prohibits discrimination in the workplace \u201con the basis of sex<\/a>\u201d, also prohibits an employer from firing someone because he or she is gay<\/a>. This is, as they say, a big f*in deal. Although the argument and decision are pretty straightforward, let\u2019s break it down and discuss how we got here.<\/p>\n

It has been a refrain among LGBT lawyers and advocates that, in states without their own anti-discrimination statute that included sexual orientation, an employee could be fired simply for being gay<\/a>. After\u00a0Obergefell<\/em>, for example, it was true in some states that a man<\/a> could marry a man<\/a> in the morning and get fired in the afternoon. This was the case because\u00a0federal<\/em> nondiscrimination law did not explicitly cover sexual orientation.<\/p>\n

Then the Equal Employment Opportunity Commission, an executive agency that hears employment discrimination cases, concluded that, actually, Title VII\u2019s sex<\/a> discrimination provision does cover sexual orientation discrimination. Think of it this way: Firing a man<\/a> because he is married to a man<\/a> is discrimination on the basis of sex<\/a> because you wouldn\u2019t fire a women<\/a> for being married to a man<\/a>. Only a man<\/a> can be fired for being married to man<\/a>, and only a woman<\/a> could be fired for being married to a woman<\/a>. Therefore, you are treating the sexes differently. That\u2019s discrimination \u201con the basis of sex<\/a>.\u201d<\/p>\n

But the ruling of an executive agency is not the law of the land. And there had been contrary court decisions from federal district and appellate courts affirming that Title VII was written to protect women<\/a> in the workplace, not gays<\/a>.<\/p>\n

A lot has changed since Title VII was written and passed by Congress in 1964. In particular, the legal status of gay<\/a> persons has changed. And anti-discrimination law itself is broader. In a case called\u00a0Price Waterhouse v. Hopkins<\/em><\/a>, the Supreme Court held that Title VII\u2019s ban on sex<\/a> discrimination can be triggered when an employee is discriminated against for failing to conform to gender stereotypes.<\/p>\n

In that case, a female<\/a> employee alleged that she was denied a promotion because the partners at Price Waterhouse thought her \u201ctoo masculine.\u201d They made fun of her appearance; suggested she wear lipstick, dresses, and high heels; and suggested that she was too \u201cmacho\u201d and lacked \u201ccharm.\u201d Notice how this kind of discrimination is not the classic form of sex<\/a> discrimination. Ms. Hopkins was not denied a promotion\u00a0because she is a woman<\/a><\/em>; she was denied a promotion\u00a0because she didn\u2019t act like a stereotypical woman<\/a><\/em>.<\/p>\n

Hively, a lesbian<\/a>, is also not a stereotypical woman<\/a>. In fact, according to the majority opinion, she is the \u201cultimate case of failure to conform to the female<\/a> stereotype\u201d because she married a woman<\/a>. Suddenly, discriminating against lesbians<\/a> for being too masculine sounds a lot like sex<\/a> discrimination.<\/p>\n

Another Supreme Court case, Oncale v. Sundowner Offshore Services<\/a><\/em>,\u00a0had a hand in this. This is a complicated case, one that we\u2019ll turn back to in time, and one that isn\u2019t entirely on our side. But for now, note that Oncale<\/em>\u00a0was about male<\/a>-on-male<\/a> sexual harassment taking place on what may be among\u00a0the most \u201cmasculine\u201d workplaces out there short of a rugby team locker room and a police department: an oil platform. Supervisors and crew members taunted, threatened, assaulted, and humiliated Oncale, suggesting he was gay<\/a>. One of them even threatened Oncale with rape. The company didn\u2019t do anything about it.<\/p>\n

The case made it all the way up to the Supreme Court because a lower court had found that men<\/a> could not sexually harass men<\/a> under Title VII. That, Justice Scalia said, was \u201cargle bargle,\u201d to use one of his choice phrases from another case. Giving us his best textualism, Scalia said that there is nothing in the statute that said that a man<\/a> cannot discriminate against another man<\/a>. The prohibition protects both men<\/a> and women<\/a> and even though the drafters of Title VII may not have thought at all about male<\/a>-on-male<\/a> harassment, they wrote a statute that said nothing about the sexes of the parties involved, only the nature of the discrimination and harassment.<\/p>\n

Put these two cases together and sexual orientation discrimination is sex<\/a> discrimination. A man<\/a> harassing another\u00a0man<\/a> for allegedly loving men<\/a> is actionable under Title VII per\u00a0Oncale<\/em>. A man<\/a> firing a man<\/a> because he isn\u2019t masculine enough is actionable under\u00a0Hopkins<\/em>. In a way,\u00a0Oncale<\/em> and\u00a0Hopkins<\/em> adequately describe what being gay<\/a> in the workplace is like. Many of us do not conform to gender stereotypes with respect to our behavior, mannerisms, attitude, and dress. And we all are attracted to persons of the same sex<\/a>. Therefore, protecting sexual orientation discrimination under sex<\/a> discrimination makes sense.<\/p>\n

In the next column, we will discuss what happens next. Stay tuned.<\/p>\n

The post 7th Circuit Says Anti-Gay Discrimination is Sex Discrimination Under Title VII: An Analysis of the Ruling<\/a> appeared first on Towleroad<\/a>.<\/p>\n

\n<\/a> <\/a> <\/a> <\/a> <\/a> <\/a>\n<\/div>\n

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7th Circuit Says Anti-Gay Discrimination is Sex Discrimination Under Title VII: An Analysis of the Ruling<\/a><\/p><\/blockquote>\n