In a recent decision, Hively v. Ivy Tech Community College, the Seventh Circuit took time to consider the methods of statutory interpretation at its disposal before advancing a new and unorthodox statutory reading. Sitting en banc, the court was considering a claim of employment discrimination on the basis of sexual orientation under Title VII of the Civil Rights Act of 1964. The district court had dismissed the complaint for failure to state a claim and a panel of the court of appeals had affirmed, citing circuit precedent that interpreted the Act’s prohibition of employment discrimination “because of . . . sex”[1] to not include a prohibition on discrimination because of sexual orientation.[2] The Seventh Circuit used the case to go back to basics, examining how it might approach this historic statute with a fresh perspective.

Writing for the majority, Chief Judge Wood noted that “[f]ew people would insist” that a court consider legislative history or later legislative action if the statute in question is “plain on its face.”[3] A purely textual approach, Wood noted, is “uncontroversial when the reading seems consistent with the conventional wisdom about the reach of the law.”[4] However, a purely textual approach “becomes somewhat harder to swallow if the language reveals suspected or actual unintended consequences.”[5]

Wood was making it clear that the court was about to embark on just such a disruptive and controversial textual reading. To be sure, the Seventh Circuit broke with a considerable wall of accumulated “conventional wisdom” when it proceeded to reverse the panel and find that Title VII protection from employment discrimination on the basis of sex extended to discrimination on the basis of sexual orientation.[6] Many of the circuits had considered the question already, and none before had come to that conclusion.[7]

Now the Supreme Court has the opportunity to consider the question of Title VII’s applicability to employment discrimination on the basis of sexual orientation. Recently, in Evans v. Georgia Regional Hospital, the Eleventh Circuit followed the “conventional” approach when it held that a claim of discrimination on the basis of sexual orientation was not actionable under Title VII.[8] The plaintiff in Evans, Jameka Evans, suffered constant harassment and discrimination in her job as a security officer because of her status as a gay woman who did not conform to her harassers’ gender stereotypes.[9] Now Evans’ cert petition is pending before the Court, and is potentially aided by the circuit split which the Seventh Circuit created in Hively. It is useful to look more closely at how the Seventh Circuit approached the issue and the theory of statutory interpretation that supports its reading of Title VII and enables a more modern understanding of sexual orientation and employment discrimination.

Hively’s Theory of Title VII Interpretation

The importance of extending anti-discrimination protections to LGBT workers is beyond doubt; the textual basis for doing so under Title VII might not be. But that is not to say Hively’s holding is without foundation. On the contrary, though the result that the Seventh Circuit arrived at is a novel one, the court’s approach has significant precedential support in Title VII jurisprudence. The text of Title VII has been recognized repeatedly to reach beyond its original understanding to accommodate new understandings of the nature and expression of sex discrimination.

The Seventh Circuit acknowledged as much when it cited[10] the Supreme Court’s decisions in Price Waterhouse v. Hopkins and Oncale v. Sundowner Offshore Servs., Inc., which extended Title VII protections to discrimination based on gender-based stereotyping[11] and harassment between members of the same sex.[12] Both decisions represented significant expansions of Title VII’s reach that essentially abandoned a strict reliance on the original understanding or intention of the statute’s use of the term “sex.” Justice Scalia, writing for the majority in Oncale went so far as to argue, “We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII . . . But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”[13]

The Hively opinion relied on the “logic” of these Supreme Court decisions, namely that “the fact that the enacting Congress may not have anticipated a particular application of the law cannot stand in the way of the provisions of the law that are on the books.”[14] That the 88th Congress had no conception of its act prohibiting discrimination on the basis of sexual orientation was not dispositive for the Hively court. From the court’s perspective, it had merely uncovered further, new meaning in the statute.

The novel understanding of sex discrimination that the court relied on is the recognition that it is “impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.”[15] The court’s argument is based not on a sense that gender and sexual orientation are somehow intrinsically or biologically linked, but rather on an understanding that the opposite is true. The court pointed out that perpetrators of LGBT discrimination continue to operate on erroneous and archaic expectations about the connection between gender and sexual orientation, writing that discrimination on the basis of sexual orientation is “based on assumptions about the proper behavior for someone of a given sex” and “does not exist without taking the victim’s biological sex . . . into account.”[16] The result is that “[a]ny discomfort, disapproval, or job decision based on the fact that the complainant—woman or man—dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.”[17]

This understanding of sexual orientation contains an implicit rejection of the traditional “binary view of sex and gender . . . that identifies men and women as polar opposites”[18] in favor of an understanding of gender as “a social institution that establishes patterns of expectations for individuals.”[19] Though the court continued to ground its reasoning in the logic of the Supreme Court’s Title VII jurisprudence and argue convincingly that its reading ultimately emanates from the statutory text, the ideas at work are relatively new by the standards of the slow-moving and often anachronistic American justice system.

Consequently, Judge Richard Posner, in a separate concurrence, rejected any attempt to frame the majority’s decision as uncovering a meaning that the enacting Congress “may not have realized” was contained in the full scope of Title VII’s words.[20] As Posner explained: “We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963–1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught.”[21] Posner is far more transparent than the majority opinion regarding the interpretive method at work in the Hively decision. “Interpretation,” he points out, “can mean giving a fresh meaning to a statement . . . a meaning that infuses the statement with vitality and significance today.” Doubling down on his potentially controversial position, Posner argued that “judicial interpretive updating” is an important means of “making old law satisfy modern needs and understandings.”[22]

Dynamic Statutory Interpretation

What Posner labeled “judicial interpretative updating” can just as easily be described with the phrase coined by Professor William Eskridge: “dynamic statutory interpretation.”[23] While some might call this method pure judicial activism, Eskridge—like Wood and Posner—is simply acknowledging the fact that this interpretive approach has been utilized by jurists in certain, appropriate cases. Indeed, Eskridge situates this method along a spectrum of interpretive approaches, ranging from pure adherence to the text to an adherence to the modern “evolutive context” surrounding the statute.[24]

At the far end of the spectrum, a dynamic reading becomes appropriate where “neither the text nor the historical context of the statute clearly resolves the interpretive question” and, in particular, “when societal conditions change in ways not anticipated by Congress.”[25] Especially when “original legislative expectations have been overtaken by subsequent changes in society and law,” public values and current societal conditions should be given greater weight in the balance with text and history.[26]

Eskridge’s theory accurately characterizes the method of statutory interpretation that courts have already used in modernizing and revitalizing Title VII. Though he does not consider the evolution of the statute’s gender-based protections, he does analyze the method employed in United Steelworkers v. Weber, where the Supreme Court found that Title VII did not prohibit employers and unions to adopt affirmative action plans.[27] As Eskridge points out, Title VII leaves the critical word “discriminate” undefined, creating uncertainty as to whether it is meant to combat any and all differential treatment on the basis of race or only invidious discrimination.[28] Eskridge argues that the court’s result comes not from the text—or from a legislative history that does not lend additional clarity—but rather from a gradual recognition that the statute was not yielding equality in employment. “American society came to understand that the invidious effects of discrimination might last long after the discrimination itself ceased,” Eskridge points out.[29]

Eskridge understands the dynamic nature of Title VII not as a product of proactive judicial activism but rather of reactive statutory accommodation. Such a characterization may not alleviate the concerns of strict textualists, but it does serve to explain the ways in which the statute has already been described by jurists. Justice Scalia’s Oncale decision recognized just such a reactive property in the statute’s gender-based protections when it described how Title VII may evolve to “cover reasonably comparable evils.”[30]

Since the significant leaps forward accomplished by Oncale and Price Waterhouse, many commentators have articulated the logical next step of extending protections on the basis of sexual orientation—despite the apparent textual limitations.[31] If the Supreme Court were to decide the issue presented by Evans it may not be as transparent as Posner was in Hively. But the Court would not be far from its own precedent or from the jurisprudential philosophy that it has built around Title VII if it mirrored Hively’s outcome.

[1] 42 U.S.C. § 2000e-2(a)(1).

[2] Hively v. Ivy Tech Community College, South Bend, 830 F.3d 698 (7th Cir. 2016). The panel did not reach its decision lightly and hinted that perhaps “the writing is on the wall” for such narrow readings of the statute. Id. at 718. The opinion even went so far as to express serious doubt on the logic of excluding discrimination on the basis of sexual orientation but including other forms of sex discrimination. See at 718 (“It seems illogical to entertain gender non-conformity claims under Title VII where the non-conformity involves style of dress or manner of speaking, but not when the gender non-conformity involves the sine qua non of gender stereotypes—with whom a person engages in sexual relationships.”).

[3] Id. at 343.

[4] Id.

[5] Id.

[6] Id. at 351–52.

[7] See Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006) (“[S]exual orientation is not a prohibited basis for discriminatory acts under Title VII.”); Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005) (“Title VII’s protections, however, do not extend to harassment due to a person’s sexuality.”); Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1063-64 (9th Cir. 2002) (“[A]n employee’s sexual orientation is irrelevant for purposes of Title VII. It neither provides nor precludes a cause of action for sexual harassment.”); Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001) (“Title VII does not prohibit discrimination based on sexual orientation.”); Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000) (holding that a claim of employment discrimination on the basis of sexual orientation “remains non-cognizable under Title VII.”); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999) (“Title VII does not proscribe harassment simply because of sexual orientation.”); Wrightson v. Pizza Hut of Am., 99 F.3d 138, 143 (4th Cir. 1996), abrogated on other grounds by Oncale v. Sundowner Offshore Servs., 523 U.S. 75 (1998) (“Title VII does not afford a cause of action for discrimination based upon sexual orientation . . . ”); Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989) (“Title VII does not prohibit discrimination against homosexuals.”).

[8] 850 F.3d 1248, 1257 (11th Cir. 2017).

[9] Id. at 1251.

[10] Hively, 853 F.3d at 342.

[11] Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989).

[12] Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 82 (1998).

[13] Id. at 79.

[14] Hively, 853 F.3d at 345, 351.

[15] Id. at 351.

[16] Id. at 346.

[17] Id. at 347.

[18] Ann C. McGinley, Erasing Boundaries: Masculinities, Sexual Minorities, and Employment Discrimination, 43 U. MICH. J.L. REFORM 713 (2010).

[19] Judith Lorber, Beyond the Binaries: Depolarizing the Categories of Sex, Sexuality, and Gender, 66 Soc. INQUIRY 143, 146-47 (1996).

[20] Hively, 853 F.3d at 357 (J. Posner concurring).

[21] Id.

[22] Id. at 352.

[23] William N. Jr. Eskridge, Dynamic Statutory Interpretation, 135 U. Pa. L. Rev. 1479, 1481 (1987).

[24] Id. at 1496.

[25] Id. at 1494, 1496.

[26] Id. at 1484.

[27] 443 U.S. 193, 200 (1979).

[28] Eskridge, supra note 23 at 1489.

[29] Id.

[30] Oncale, 523 U.S. at 79.

[31] Zachary R. Herz, Price‘s Progress: Sex Stereotyping and Its Potential for Antidiscrimination Law, 124 Yale L.J. 396, 447 (2014); Ronald Turner, Making Title VII Law and Policy: The Supreme Court’s Sexual Harassment Jurisprudence, 22 Hofstra Lab. & Emp. L.J. 575, 600 (2005); Zachary A. Kramer, The Ultimate Gender Stereotype: Equalizing Gender-Conforming and Gender-Nonconforming Homosexuals under Title VII, 2004 U. Ill. L. Rev. 465, 500 (2004).