The 7th Circuit in Chicago heard arguments in Hively v. Ivy Tech Community College. The question before the court: Does an existing federal civil rights law already prohibit workplace discrimination on the basis of sexual orientation?
Congress has repeatedly considered adding sexual orientation to Title VII of the Civil Rights Act of 1964, which prohibits several forms of employment discrimination, and ultimately declined to do so. But Title VII has, from the start, included a ban on discrimination “because of sex.” In 1989’s Price Waterhouse v. Hopkins, the Supreme Court defined sex discrimination to include sex stereotyping—mistreating employees because they fail to comply with gender norms. Since then, a number of courts have held that this expansive definition of sex discrimination may also encompass anti-gay discrimination. In 2015’s Baldwin v. Foxx, the Equal Employment Opportunity Commission declared that sexual orientation discrimination is sex discrimination under Title VII.
Hively alleges that she was denied a full-time position at Ivy Tech because she is a lesbian. Nevins barely begins to explain why that qualifies as sex discrimination when Chief Judge Diane Wood cuts to the core of the argument.
“You’re saying this is a but-for test,” Wood says. “But for her sex, this wouldn’t have happened.”
Wood has lit upon one of the EEOC’s three big Baldwin rationales: That any coherent understanding of sexual orientation must include reference to sex—and the entire purpose of Title VII was to take sex off the table as a legitimate concern in workplace matters. To illustrate this idea, imagine a man is employed by a vicious homophobe. If the man dates women, the employer won’t fire him. If the man dates men, the employer will sack him. The decision to fire the man was quite literally “because of sex”—if he were a different sex, or he dated a different sex, he would not have been fired. And under Title VII, that sex-based consideration is plainly unlawful.
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