{"id":10761,"date":"2017-12-03T00:31:34","date_gmt":"2017-12-03T05:31:34","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=10761"},"modified":"2020-07-24T15:05:28","modified_gmt":"2020-07-24T19:05:28","slug":"comparable-evils-how-to-read-sexual-orientation-into-title-viis-evolving-protections","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/comparable-evils-how-to-read-sexual-orientation-into-title-viis-evolving-protections\/","title":{"rendered":"\u201cComparable Evils\u201d: How to Read Sexual Orientation into Title VII’s Evolving Protections"},"content":{"rendered":"

In a recent decision, Hively v. Ivy Tech Community College<\/em>, 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\u2019s prohibition of employment discrimination \u201cbecause of . . . sex\u201d[1]<\/a> to not include a prohibition on discrimination because of sexual orientation.[2]<\/a> The Seventh Circuit used the case to go back to basics, examining how it might approach this historic statute with a fresh perspective.<\/p>\n

Writing for the majority, Chief Judge Wood noted that \u201c[f]ew people would insist\u201d that a court consider legislative history or later legislative action if the statute in question is \u201cplain on its face.\u201d[3]<\/a> A purely textual approach, Wood noted, is \u201cuncontroversial when the reading seems consistent with the conventional wisdom about the reach of the law.\u201d[4]<\/a> However, a purely textual approach \u201cbecomes somewhat harder to swallow if the language reveals suspected or actual unintended consequences.\u201d[5]<\/a><\/p>\n

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 \u201cconventional wisdom\u201d 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]<\/a> Many of the circuits had considered the question already, and none before had come to that conclusion.[7]<\/a><\/p>\n

Now the Supreme Court has the opportunity to consider the question of Title VII\u2019s applicability to employment discrimination on the basis of sexual orientation. Recently, in Evans v. Georgia Regional Hospital<\/em>, the Eleventh Circuit followed the \u201cconventional\u201d approach when it held that a claim of discrimination on the basis of sexual orientation was not actionable under Title VII.[8]<\/a> The plaintiff in Evans<\/em>, 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\u2019 gender stereotypes.[9]<\/a> Now Evans\u2019 cert petition is pending before the Court, and is potentially aided by the circuit split which the Seventh Circuit created in Hively<\/em>. 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.<\/p>\n

Hively<\/em>\u2019s Theory of Title VII Interpretation<\/strong><\/p>\n

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<\/em>\u2019s holding is without foundation. On the contrary, though the result that the Seventh Circuit arrived at is a novel one, the court\u2019s 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.<\/p>\n

The Seventh Circuit acknowledged as much when it cited[10]<\/a> the Supreme Court\u2019s decisions in Price Waterhouse v. Hopkins<\/em> and Oncale v. Sundowner Offshore Servs., Inc.<\/em>, which extended Title VII protections to discrimination based on gender-based stereotyping[11]<\/a> and harassment between members of the same sex.[12]<\/a> Both decisions represented significant expansions of Title VII\u2019s reach that essentially abandoned a strict reliance on the original understanding or intention of the statute\u2019s use of the term \u201csex.\u201d Justice Scalia, writing for the majority in Oncale<\/em> went so far as to argue, \u201cWe 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.\u201d[13]<\/a><\/p>\n

The Hively<\/em> opinion relied on the \u201clogic\u201d of these Supreme Court decisions, namely that \u201cthe 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.\u201d[14]<\/a> That the 88th<\/sup> Congress had no conception of its act prohibiting discrimination on the basis of sexual orientation was not dispositive for the Hively<\/em> court. From the court\u2019s perspective, it had merely uncovered further, new meaning in the statute.<\/p>\n

The novel understanding of sex discrimination that the court relied on is the recognition that it is \u201cimpossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.\u201d[15]<\/a> The court\u2019s 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 \u201cbased on assumptions about the proper behavior for someone of a given sex\u201d and \u201cdoes not exist without taking the victim\u2019s biological sex . . . into account.\u201d[16]<\/a> The result is that \u201c[a]ny discomfort, disapproval, or job decision based on the fact that the complainant\u2014woman or man\u2014dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.\u201d[17]<\/a><\/p>\n

This understanding of sexual orientation contains an implicit rejection of the traditional \u201cbinary view of sex and gender . . . that identifies men and women as polar opposites\u201d[18]<\/a> in favor of an understanding of gender as \u201ca social institution that establishes patterns of expectations for individuals.\u201d[19]<\/a> Though the court continued to ground its reasoning in the logic of the Supreme Court\u2019s 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.<\/p>\n

Consequently, Judge Richard Posner, in a separate concurrence, rejected any attempt to frame the majority\u2019s decision as uncovering a meaning that the enacting Congress \u201cmay not have realized\u201d was contained in the full scope of Title VII\u2019s words.[20]<\/a> As Posner explained: \u201cWe should not leave the impression that we are merely the obedient servants of the 88th Congress (1963\u20131965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught.\u201d[21]<\/a> Posner is far more transparent than the majority opinion regarding the interpretive method at work in the Hively<\/em> decision. \u201cInterpretation,\u201d he points out, \u201ccan mean giving a fresh meaning to a statement . . . a meaning that infuses the statement with vitality and significance today.\u201d Doubling down on his potentially controversial position, Posner argued that \u201cjudicial interpretive updating\u201d is an important means of \u201cmaking old law satisfy modern needs and understandings.\u201d[22]<\/a><\/p>\n

Dynamic Statutory Interpretation<\/strong><\/p>\n

What Posner labeled \u201cjudicial interpretative updating\u201d can just as easily be described with the phrase coined by Professor William Eskridge: \u201cdynamic statutory interpretation.\u201d[23]<\/a> While some might call this method pure judicial activism, Eskridge\u2014like Wood and Posner\u2014is 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 \u201cevolutive context\u201d surrounding the statute.[24]<\/a><\/p>\n

At the far end of the spectrum, a dynamic reading becomes appropriate where \u201cneither the text nor the historical context of the statute clearly resolves the interpretive question\u201d and, in particular, \u201cwhen societal conditions change in ways not anticipated by Congress.\u201d[25]<\/a> Especially when \u201coriginal legislative expectations have been overtaken by subsequent changes in society and law,\u201d public values and current societal conditions should be given greater weight in the balance with text and history.[26]<\/a><\/p>\n

Eskridge\u2019s 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\u2019s gender-based protections, he does analyze the method employed in United Steelworkers v. Weber<\/em>, where the Supreme Court found that Title VII did not prohibit employers and unions to adopt affirmative action plans.[27]<\/a> As Eskridge points out, Title VII leaves the critical word \u201cdiscriminate\u201d 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]<\/a> Eskridge argues that the court\u2019s result comes not from the text\u2014or from a legislative history that does not lend additional clarity\u2014but rather from a gradual recognition that the statute was not yielding equality in employment. \u201cAmerican society came to understand that the invidious effects of discrimination might last long after the discrimination itself ceased,\u201d Eskridge points out.[29]<\/a><\/p>\n

Eskridge understands the dynamic nature of Title VII not as a product of proactive judicial activism but rather of reactive<\/em> 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\u2019s Oncale<\/em> decision recognized just such a reactive property in the statute\u2019s gender-based protections when it described how Title VII may evolve to \u201ccover reasonably comparable evils.\u201d[30]<\/a><\/p>\n

Since the significant leaps forward accomplished by Oncale<\/em> and Price Waterhouse<\/em>, many commentators have articulated the logical next step of extending protections on the basis of sexual orientation\u2014despite the apparent textual limitations.[31]<\/a> If the Supreme Court were to decide the issue presented by Evans<\/em> it may not be as transparent as Posner was in Hively<\/em>. 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<\/em>\u2019s outcome.<\/p>\n

[1]<\/a> 42 U.S.C. \u00a7 2000e-2(a)(1).<\/p>\n

[2]<\/a> Hively v. Ivy Tech Community College, South Bend<\/em>, 830 F.3d 698 (7th<\/sup> Cir. 2016). The panel did not reach its decision lightly and hinted that perhaps \u201cthe writing is on the wall\u201d for such narrow readings of the statute. Id.<\/em> 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<\/em> at 718 (\u201cIt 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<\/em> of gender stereotypes\u2014with whom a person engages in sexual relationships.\u201d).<\/p>\n

[3]<\/a> Id.<\/em> at 343.<\/p>\n

[4]<\/a> Id.<\/em><\/p>\n

[5]<\/a> Id.<\/em><\/p>\n

[6]<\/a> Id.<\/em> at 351\u201352.<\/p>\n

[7]<\/a> See<\/em> Vickers v. Fairfield Med. Ctr.<\/em>, 453 F.3d 757, 762 (6th Cir. 2006) (\u201c[S]exual orientation is not a prohibited basis for discriminatory acts under Title VII.\u201d); Medina v. Income Support Div.<\/em>, 413 F.3d 1131, 1135 (10th Cir. 2005) (\u201cTitle VII\u2019s protections, however, do not extend to harassment due to a person\u2019s sexuality.\u201d); Rene v. MGM Grand Hotel, Inc.<\/em>, 305 F.3d 1061, 1063-64 (9th Cir. 2002) (\u201c[A]n employee\u2019s sexual orientation is irrelevant for purposes of Title VII. It neither provides nor precludes a cause of action for sexual harassment.\u201d); Bibby v. Phila. Coca Cola Bottling Co.<\/em>, 260 F.3d 257, 261 (3d Cir. 2001) (\u201cTitle VII does not prohibit discrimination based on sexual orientation.\u201d); Simonton v. Runyon<\/em>, 232 F.3d 33, 36 (2d Cir. 2000) (holding that a claim of employment discrimination on the basis of sexual orientation \u201cremains non-cognizable under Title VII.\u201d); Higgins v. New Balance Athletic Shoe, Inc.<\/em>, 194 F.3d 252, 259 (1st Cir. 1999) (\u201cTitle VII does not proscribe harassment simply because of sexual orientation.\u201d); Wrightson v. Pizza Hut of Am.<\/em>, 99 F.3d 138, 143 (4th Cir. 1996), abrogated on other grounds by Oncale v. Sundowner Offshore Servs.<\/em>, 523 U.S. 75 (1998) (\u201cTitle VII does not afford a cause of action for discrimination based upon sexual orientation . . . \u201d); Williamson v. A.G. Edwards & Sons, Inc.<\/em>, 876 F.2d 69, 70 (8th Cir. 1989) (\u201cTitle VII does not prohibit discrimination against homosexuals.\u201d).<\/p>\n

[8]<\/a> 850 F.3d 1248, 1257 (11th Cir. 2017).<\/p>\n

[9]<\/a> Id.<\/em> at 1251.<\/p>\n

[10]<\/a> Hively,<\/em> 853 F.3d at 342.<\/p>\n

[11]<\/a> Price Waterhouse v. Hopkins<\/em>, 490 U.S. 228, 258 (1989).<\/p>\n

[12]<\/a> Oncale v. Sundowner Offshore Servs., Inc.<\/em>, 523 U.S. 75, 82 (1998).<\/p>\n

[13]<\/a>\u00a0Id.<\/i>\u00a0at 79.<\/p>\n

[14]<\/a> Hively,<\/em> 853 F.3d at 345, 351.<\/p>\n

[15]<\/a> Id.<\/em> at 351.<\/p>\n

[16]<\/a> Id.<\/em> at 346.<\/p>\n

[17]<\/a> Id.<\/em> at 347.<\/p>\n

[18]<\/a> Ann C. McGinley, Erasing Boundaries: Masculinities, Sexual Minorities, and Employment Discrimination<\/em>, 43 U. MICH. J.L. REFORM 713 (2010).<\/p>\n

[19]<\/a> Judith Lorber, Beyond the Binaries: Depolarizing the Categories of Sex, Sexuality, and Gender<\/em>, 66 Soc. INQUIRY 143, 146-47 (1996).<\/p>\n

[20]<\/a> Hively,<\/em> 853 F.3d at\u00a0357 (J. Posner concurring).<\/p>\n

[21]<\/a> Id.<\/em><\/p>\n

[22]<\/a> Id.<\/em> at 352.<\/p>\n

[23]<\/a> William N. Jr. Eskridge, Dynamic Statutory Interpretation<\/em>, 135 U. Pa. L. Rev. 1479, 1481 (1987).<\/p>\n

[24]<\/a> Id.<\/em> at 1496.<\/p>\n

[25]<\/a> Id.<\/em> at 1494, 1496.<\/p>\n

[26]<\/a> Id.<\/em> at 1484.<\/p>\n

[27]<\/a> 443 U.S. 193, 200 (1979).<\/p>\n

[28]<\/a> Eskridge, supra<\/i> note 23\u00a0at 1489.<\/p>\n

[29]<\/a> Id.<\/em><\/p>\n

[30]<\/a> Oncale<\/em>, 523 U.S. at 79.<\/p>\n

[31]<\/a> Zachary R. Herz, Price‘s Progress: Sex Stereotyping and Its Potential for Antidiscrimination Law,<\/em> 124 Yale L.J. 396, 447 (2014); Ronald Turner, Making Title VII Law and Policy: The Supreme Court’s Sexual Harassment Jurisprudence<\/em>, 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<\/em>, 2004 U. Ill. L. Rev. 465, 500 (2004).<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

In a recent decision, Hively v. Ivy Tech Community College, the Seventh Circuit took time to consider the methods of 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