Sexual orientation is not mentioned in the text of the Civil Rights Act and the law has never been interpreted to include sexual orientation.
The Associated Press notes that the 8-3 ruling is unusual for several reasons. The court is considered to be somewhat conservative even though it is in Chicago. Five of the eight judges were appointed by Republican presidents who typically value a literal interpretation of the law as opposed to Democrats who tend to stray from the written text.
The case centers on Kimberly Hively, a former teacher at Ivy Tech Community College in South Bend, Indiana. Hively says that after an administrator saw her kissing her girlfriend in 2009, the school refused to promote her, harassed her and eventually fired her four years later.
The case hinged on the meaning of the word “sex” in the Civil Rights Act, which bans workplace discrimination based on race, religion, national origin, and sex. Hively’s lawyer argued that discrimination due to sexual orientation is illegal under the law’s prohibition of sexual discrimination. This interpretation is based on the Supreme Court ruling in Price Waterhouse v. Hopkins (1989) which held that gender stereotyping was a banned form of sex discrimination. Congress has repeatedly failed to add sexual orientation to the list of protected classes under the law.
Judge Diane Wood, a Clinton appointee, said in the majority opinion, “Any 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. That means that it falls within Title VII’s prohibition against sex discrimination ….”
“I don’t see why firing a lesbian because she is in the subset of women who are lesbian should be thought any less a form of sex discrimination than firing a woman because she’s a woman,” wrote Judge Richard Posner in his opinion that concurred with the majority ruling. Posner was appointed by President Ronald Reagan.
“Who will be hurt if gays and lesbians have a little more job protection?” Judge Posner reportedly asked during arguments on the case per New York Magazine. “So, what’s the big deal?” he continued when the attorney did not give an answer, “Are we bound by what people thought in 1964?”
“(Lawmakers in the 1960s) shouldn’t be blamed for that failure of foresight,” Posner wrote in his opinion. “We understand the words of Title VII differently not because we’re smarter than the statute’s framers and ratifiers but because we live in a different era, a different culture.”
“We are not authorized to infuse the text with a new or unconventional meaning or to update it to respond to changed social, economic, or political conditions,” Judge Diane Sykes, who was considered by President Trump for the Supreme Court, wrote in her dissent. “It’s understandable that the court is impatient to protect lesbians and gay men from workplace discrimination without waiting for Congress to act. Legislative change is arduous and can be slow to come. But we’re not authorized to amend Title VII by interpretation.”
Ivy Tech said in a statement that its policies already prohibit discrimination on the basis of sexual orientation and denies that it discriminated against Lively at all. The factual question of whether discrimination occurred was separate from whether the discrimination was illegal under the Civil Rights Act.
The 7th Circuit ruling contradicts a ruling by a three-judge panel in Atlanta three weeks ago. Because of the controversial interpretation of the law and the fact that different courts are issuing opposite rulings, the case is likely to come before the Supreme Court.