Hively v. Ivy Tech Community College of Indiana

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1720
KIMBERLY HIVELY,
Plaintiff-Appellant,
v.
IVY TECH COMMUNITY COLLEGE OF INDIANA,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:14-cv-1791 — Rudy Lozano, Judge.
____________________
ARGUED NOVEMBER 30, 2016 — DECIDED APRIL 4, 2017
____________________
Before WOOD, Chief Judge, and BAUER, POSNER, FLAUM,
EASTERBROOK, RIPPLE, KANNE, ROVNER, WILLIAMS, SYKES, and
HAMILTON, Circuit Judges.
WOOD, Chief Judge. Title VII of the Civil Rights Act of 1964
makes it unlawful for employers subject to the Act to discrim-
inate on the basis of a person’s “race, color, religion, sex, or
national origin … .” 42 U.S.C. § 2000e-2(a). For many years,
the courts of appeals of this country understood the prohibi-
tion against sex discrimination to exclude discrimination on
2 No. 15-1720
the basis of a person’s sexual orientation. The Supreme Court,
however, has never spoken to that question. In this case, we
have been asked to take a fresh look at our position in light of
developments at the Supreme Court extending over two dec-
ades. We have done so, and we conclude today that discrimi-
nation on the basis of sexual orientation is a form of sex dis-
crimination. We therefore reverse the district court’s judgment
dismissing Kimberly Hively’s suit against Ivy Tech Commu-
nity College and remand for further proceedings.
I
Hively is openly lesbian. She began teaching as a part-
time, adjunct professor at Ivy Tech Community College’s
South Bend campus in 2000. Hoping to improve her lot, she
applied for at least six full-time positions between 2009 and
2014. These efforts were unsuccessful; worse yet, in July 2014
her part-time contract was not renewed. Believing that Ivy
Tech was spurning her because of her sexual orientation, she
filed a pro se charge with the Equal Employment Opportunity
Commission on December 13, 2013. It was short and to the
point:
I have applied for several positions at IVY TECH,
fulltime, in the last 5 years. I believe I am being blocked
from fulltime employment without just cause. I believe
I am being discriminated against based on my sexual
orientation. I believe I have been discriminated against
and that my rights under Title VII of the Civil Rights
Act of 1964 were violated.
After receiving a right-to-sue letter, she filed this action in the
district court (again acting pro se). Ivy Tech responded with a
motion to dismiss for failure to state a claim on which relief
No. 15-1720 3
can be granted. It argued that sexual orientation is not a pro-
tected class under Title VII or 42 U.S.C. § 1981 (which we will
disregard for the remainder of this opinion). Relying on a line
of this court’s cases exemplified by Hamner v. St. Vincent Hosp.
and Health Care Ctr., Inc., 224 F.3d 701 (7th Cir. 2000), the dis-
trict court granted Ivy Tech’s motion and dismissed Hively’s
case with prejudice.
Now represented by the Lambda Legal Defense & Educa-
tion Fund, Hively has appealed to this court. After an exhaus-
tive exploration of the law governing claims involving dis-
crimination based on sexual orientation, the panel affirmed.
Hively v. Ivy Tech Cmty. Coll., 830 F.3d 698 (7th Cir. 2016). It
began its analysis by noting that the idea that discrimination
based on sexual orientation is somehow distinct from sex dis-
crimination originated with dicta in Ulane v. Eastern Airlines,
Inc., 742 F.2d 1081 (7th Cir. 1984). Ulane stated (as if this re-
solved matters) that Title VII’s prohibition against sex dis-
crimination “implies that it is unlawful to discriminate
against women because they are women and against men be-
cause they are men.” Id. at 1085. From this truism, we deduced
that “Congress had nothing more than the traditional notion
of ‘sex’ in mind when it voted to outlaw sex discrimination …
.” Doe v. City of Belleville, Ill., 119 F.3d 563, 572 (7th Cir. 1997),
cert. granted, judgment vacated sub nom. City of Belleville v. Doe,
523 U.S. 1001 (1998), abrogated by Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75 (1998).
Later cases in this court, including Hamm v. Weyauwega
Milk Prods., 332 F.3d 1058 (7th Cir. 2003), Hamner, and Spear-
man v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000), have
accepted this as settled law. Almost all of our sister circuits
have understood the law in the same way. See, e.g., Higgins v.
4 No. 15-1720
New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999);
Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005);
Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 290 (3d Cir. 2009);
Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138, 143 (4th Cir.
1996); Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979);
Kalich v. AT&T Mobility, LLC, 679 F.3d 464, 471 (6th Cir. 2012);
Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir.
1989); Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th
Cir. 2005); Fredette v. BVP Mgmt. Assocs., 112 F.3d 1503, 1510
(11th Cir. 1997). A panel of the Eleventh Circuit, recognizing
that it was bound by the Fifth Circuit’s precedent in Blum, 597
F.2d 936, recently reaffirmed (by a 2–1 vote) that it could not
recognize sexual orientation discrimination claims under Ti-
tle VII. Evans v. Georgia Reg’l Hosp., No. 15-15234, 2017 WL
943925, at *5–6 (11th Cir. Mar. 10, 2017). On the other hand,
the Second Circuit recently found that an openly gay male
plaintiff pleaded a claim of gender stereotyping that was suf-
ficient to survive dismissal. The court observed that one panel
lacked the power to reconsider the court’s earlier decision
holding that sexual orientation discrimination claims were
not cognizable under Title VII. Christiansen v. Omnicom Group,
Inc., No. 16-748 (2d Cir. Mar. 27, 2017) (per curiam). Nonethe-
less, two of the three judges, relying on many of the same ar-
guments presented here, noted in concurrence that they
thought their court ought to consider revisiting that precedent
in an appropriate case. Id. at 2 (Katzmann, J., concurring). No-
table in its absence from the debate over the proper interpre-
tation of the scope of Title VII’s ban on sex discrimination is
the United States Supreme Court.
That is not because the Supreme Court has left this subject
entirely to the side. To the contrary, as the panel recognized,
over the years the Court has issued several opinions that are
No. 15-1720 5
relevant to the issue before us. Key among those decisions are
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). Price Water-
house held that the practice of gender stereotyping falls within
Title VII’s prohibition against sex discrimination, and Oncale
clarified that it makes no difference if the sex of the harasser
is (or is not) the same as the sex of the victim. Our panel
frankly acknowledged how difficult it is “to extricate the gen-
der nonconformity claims from the sexual orientation
claims.” 830 F.3d at 709. That effort, it commented, has led to
a “confused hodge-podge of cases.” Id. at 711. It also noted
that “all gay, lesbian and bisexual persons fail to comply with
the sine qua non of gender stereotypes—that all men should
form intimate relationships only with women, and all women
should form intimate relationships only with men.” Id. Espe-
cially since the Supreme Court’s recognition that the Due Pro-
cess and Equal Protection Clauses of the Constitution protect
the right of same-sex couples to marry, Obergefell v. Hodges,
135 S.Ct. 2584 (2015), bizarre results ensue from the current
regime. As the panel noted, it creates “a paradoxical legal
landscape in which a person can be married on Saturday and
then fired on Monday for just that act.” 830 F.3d at 714. Finally,
the panel highlighted the sharp tension between a rule that
fails to recognize that discrimination on the basis of the sex
with whom a person associates is a form of sex discrimina-
tion, and the rule, recognized since Loving v. Virginia, 388 U.S.
1 (1967), that discrimination on the basis of the race with
whom a person associates is a form of racial discrimination.
Despite all these problems, the panel correctly noted that
it was bound by this court’s precedents, to which we referred
earlier. It thought that the handwriting signaling their demise
6 No. 15-1720
might be on the wall, but it did not feel empowered to trans-
late that message into a holding. “Until the writing comes in
the form of a Supreme Court opinion or new legislation,” 830
F.3d at 718, it felt bound to adhere to our earlier decisions. In
light of the importance of the issue, and recognizing the
power of the full court to overrule earlier decisions and to
bring our law into conformity with the Supreme Court’s
teachings, a majority of the judges in regular active service
voted to rehear this case en banc.
II
A
The question before us is not whether this court can, or
should, “amend” Title VII to add a new protected category to
the familiar list of “race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a). Obviously that lies beyond our
power. We must decide instead what it means to discriminate
on the basis of sex, and in particular, whether actions taken
on the basis of sexual orientation are a subset of actions taken
on the basis of sex.1 This is a pure question of statutory inter-
pretation and thus well within the judiciary’s competence.
Much ink has been spilled about the proper way to go
about the task of statutory interpretation. One can stick, to the
greatest extent possible, to the language enacted by the legis-
lature; one could consult the legislative history that led up to
1 For present purposes, we have no need to decide whether discrimi-
nation on the basis of “gender” is for legal purposes the same as discrim-
ination on the basis of “sex,” which is the statutory term. Many courts,
including the Supreme Court, appear to have used “sex” and “gender”
synonymously. Should a case arise in which the facts require us to exam-
ine the differences (if any) between the terms, we will do so then.
No. 15-1720 7
the bill that became law; one could examine later actions of
the legislature (i.e. efforts to amend the law and later enact-
ments) for whatever light they may shed; and one could use
a combination of these methods. See, e.g., William Eskridge,
Jr., & Philip Frickey, Legislation and Statutory Interpretation (2d
ed. 2007); Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts (2012); Adrian Vermeule, Judging
Under Uncertainty: An Institutional Theory of Legal Interpretation
(2006); Victoria F. Nourse, A Decision Theory of Statutory Inter-
pretation: Legislative History by the Rules, 122 Yale L.J. 70 (2012);
Cass R. Sunstein, Interpreting Statutes in the Regulatory State,
103 Harv. L. Rev. 407 (1989).
Few people would insist that there is a need to delve into
secondary sources if the statute is plain on its face. Even if it
is not pellucid, the best source for disambiguation is the
broader context of the statute that the legislature—in this case,
Congress—passed. This is uncontroversial when the reading
seems consistent with the conventional wisdom about the
reach of the law. It becomes somewhat harder to swallow if
the language reveals suspected or actual unintended conse-
quences. It is then that some have thought that legislative his-
tory should be used to block a particular reading of a statute.
Legislative history, however, is notoriously malleable. Even
worse is the temptation to try to divine the significance of un-
successful legislative efforts to change the law. Those failures
can mean almost anything, ranging from the lack of necessity
for a proposed change because the law already accomplishes
the desired goal, to the undesirability of the change because a
majority of the legislature is happy with the way the courts
are currently interpreting the law, to the irrelevance of the
non-enactment, when it is attributable to nothing more than
8 No. 15-1720
legislative logrolling or gridlock that had nothing to do with
its merits.
Ivy Tech sets great store on the fact that Congress has fre-
quently considered amending Title VII to add the words “sex-
ual orientation” to the list of prohibited characteristics, yet it
has never done so. Many of our sister circuits have also noted
this fact. In our view, however, it is simply too difficult to
draw a reliable inference from these truncated legislative ini-
tiatives to rest our opinion on them. The goalposts have been
moving over the years, as the Supreme Court has shed more
light on the scope of the language that already is in the statute:
no sex discrimination.
The dissent makes much of the fact that Congresses acting
more than thirty years after the passage of Title VII made use
of the term “sexual orientation” to prohibit discrimination or
violence on that basis in statutes such as the Violence Against
Women Act and the federal Hate Crimes Act. But this gets us
no closer to answering the question at hand, for Congress may
certainly choose to use both a belt and suspenders to achieve
its objectives, and the fact that “sex” and “sexual orientation”
discrimination may overlap in later statutes is of no help in
determining whether sexual orientation discrimination is dis-
crimination on the basis of sex for the purposes of Title VII.
See, e.g., McEvoy v. IEI Barge Servs., Inc., 622 F.3d 671, 677 (7th
Cir. 2010) (“Congress may choose a belt-and-suspenders ap-
proach to promote its policy objectives… .”).
Moreover, the agency most closely associated with this
law, the Equal Employment Opportunity Commission, in
2015 announced that it now takes the position that Title VII’s
prohibition against sex discrimination encompasses discrimi-
nation on the basis of sexual orientation. See Baldwin v. Foxx,
No. 15-1720 9
EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 15,
2015). Our point here is not that we have a duty to defer to the
EEOC’s position. We assume for present purposes that no
such duty exists. But the Commission’s position may have
caused some in Congress to think that legislation is needed to
carve sexual orientation out of the statute, not to put it in. In
the end, we have no idea what inference to draw from con-
gressional inaction or later enactments, because there is no
way of knowing what explains each individual member’s
votes, much less what explains the failure of the body as a
whole to change this 1964 statute.
Our interpretive task is guided instead by the Supreme
Court’s approach in the closely related case of Oncale, where
it had this to say as it addressed the question whether Title
VII covers sexual harassment inflicted by a man on a male vic-
tim:
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.
As some courts have observed, male-on-male sexual
harassment in the workplace was assuredly not the
principal evil Congress was concerned with when it
enacted Title VII. But statutory prohibitions often go
beyond the principal evil to cover reasonably compa-
rable evils, and it is ultimately the provisions of our
laws rather than the principal concerns of our legisla-
tors by which we are governed. Title VII prohibits “dis-
criminat[ion] … because of … sex” in the “terms” or
“conditions” of employment. Our holding that this in-
10 No. 15-1720
cludes sexual harassment must extend to sexual har-
assment of any kind that meets the statutory require-
ments.
523 U.S. at 79–80. The Court could not have been clearer: 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.
It is therefore neither here nor there that the Congress that
enacted the Civil Rights Act in 1964 and chose to include sex
as a prohibited basis for employment discrimination (no mat-
ter why it did so) may not have realized or understood the full
scope of the words it chose. Indeed, in the years since 1964,
Title VII has been understood to cover far more than the sim-
ple decision of an employer not to hire a woman for Job A, or
a man for Job B. The Supreme Court has held that the prohi-
bition against sex discrimination reaches sexual harassment
in the workplace, see Meritor Sav. Bank, FSB v. Vinson, 477 U.S.
57 (1986), including same-sex workplace harassment, see On-
cale; it reaches discrimination based on actuarial assumptions
about a person’s longevity, see City of Los Angeles, Dep’t of Wa-
ter and Power v. Manhart, 435 U.S. 702 (1978); and it reaches
discrimination based on a person’s failure to conform to a cer-
tain set of gender stereotypes, see Hopkins. It is quite possible
that these interpretations may also have surprised some who
served in the 88th Congress. Nevertheless, experience with
the law has led the Supreme Court to recognize that each of
these examples is a covered form of sex discrimination.
B
Hively offers two approaches in support of her contention
that “sex discrimination” includes discrimination on the basis
No. 15-1720 11
of sexual orientation. The first relies on the tried-and-true
comparative method in which we attempt to isolate the sig-
nificance of the plaintiff’s sex to the employer’s decision: has
she described a situation in which, holding all other things
constant and changing only her sex, she would have been
treated the same way? The second relies on the Loving v. Vir-
ginia, 388 U.S. 1 (1967), line of cases, which she argues protect
her right to associate intimately with a person of the same sex.
Although the analysis differs somewhat, both avenues end up
in the same place: sex discrimination.
1
It is critical, in applying the comparative method, to be
sure that only the variable of the plaintiff’s sex is allowed to
change. The fundamental question is not whether a lesbian is
being treated better or worse than gay men, bisexuals, or
transsexuals, because such a comparison shifts too many
pieces at once. Framing the question that way swaps the crit-
ical characteristic (here, sex) for both the complainant and the
comparator and thus obscures the key point—whether the
complainant’s protected characteristic played a role in the ad-
verse employment decision. The counterfactual we must use
is a situation in which Hively is a man, but everything else
stays the same: in particular, the sex or gender of the partner.
Hively alleges that if she had been a man married to a
woman (or living with a woman, or dating a woman) and eve-
rything else had stayed the same, Ivy Tech would not have
refused to promote her and would not have fired her. (We take
the facts in the light most favorable to her, because we are here
on a Rule 12(b)(6) dismissal; naturally nothing we say will
prevent Ivy Tech from contesting these points in later pro-
ceedings.) This describes paradigmatic sex discrimination. To
12 No. 15-1720
use the phrase from Ulane, Ivy Tech is disadvantaging her be-
cause she is a woman. Nothing in the complaint hints that Ivy
Tech has an anti-marriage policy that extends to heterosexual
relationships, or for that matter even an anti-partnership pol-
icy that is gender-neutral.
Viewed through the lens of the gender non-conformity
line of cases, Hively represents the ultimate case of failure to
conform to the female stereotype (at least as understood in a
place such as modern America, which views heterosexuality
as the norm and other forms of sexuality as exceptional): she
is not heterosexual. Our panel described the line between a
gender nonconformity claim and one based on sexual orien-
tation as gossamer-thin; we conclude that it does not exist at
all. Hively’s claim is no different from the claims brought by
women who were rejected for jobs in traditionally male work-
places, such as fire departments, construction, and policing.
The employers in those cases were policing the boundaries of
what jobs or behaviors they found acceptable for a woman (or
in some cases, for a man).
This was the critical point that the Supreme Court was
making in Hopkins. The four justices in the plurality and the
two justices concurring in the judgment recognized that Hop-
kins had alleged that her employer was discriminating only
against women who behaved in what the employer viewed as
too “masculine” a way—no makeup, no jewelry, no fashion
sense.2 And even before Hopkins, courts had found sex dis-
2 The dissent correctly points out that Hopkins was a plurality opinion,
but that fact is of no moment in understanding what we are to take from
the plurality’s discussion of sex stereotyping. On the critical issue—
whether the conduct about which Hopkins complained could support a
No. 15-1720 13
crimination in situations where women were resisting stereo-
typical roles. As far back as 1971, the Supreme Court held that
Title VII does not permit an employer to refuse to hire women
with pre-school-age children, but not men. Phillips v. Martin
Marietta Corp., 400 U.S. 542 (1971). Around the same time, this
court held that Title VII “strike[s] at the entire spectrum of
disparate treatment of men and women resulting from sex
stereotypes,” Sprogis v. United Air Lines, Inc., 444 F.2d 1194,
1198 (7th Cir. 1971), and struck down a rule requiring only the
female employees to be unmarried. In both those instances,
the employer’s rule did not affect every woman in the work-
force. Just so here: a policy that discriminates on the basis of
sexual orientation does not affect every woman, or every man,
but it is based on assumptions about the proper behavior for
someone of a given sex.3 The discriminatory behavior does
finding of sex discrimination for purposes of Title VII—at least six justices
were in agreement that the answer was yes. Justice Brennan’s opinion for
the four-person plurality was clear: “In the specific context of sex stereo-
typing, an employer who acts on the basis of a belief that a woman cannot
be aggressive, or that she must not be, has acted on the basis of gender.”
490 U.S. at 250. Justice White, concurring in the judgment, stated that he
agreed that an unlawful motive was a substantial factor in the adverse
employment action Hopkins suffered. Id. at 259. Justice O’Connor, also
concurring in the judgment, “agree[d] with the plurality that, on the facts
presented in this case, the burden of persuasion should shift to the em-
ployer to demonstrate by a preponderance of the evidence that it would
have reached the same decision concerning Ann Hopkins’ candidacy ab-
sent consideration of her gender.” Id. at 261. Justice Kennedy’s dissenting
opinion did not need to dwell on this point, because he found that Hop-
kins could not prove causation.
3 The dissent questions in its conclusion what a jury ought to do in the
hypothetical case in which Ivy Tech hired six heterosexual women for the
full-time positions. But, as we note, the Supreme Court has made it clear
that a policy need not affect every woman to constitute sex discrimination.
14 No. 15-1720
not exist without taking the victim’s biological sex (either as
observed at birth or as modified, in the case of transsexuals)
into account. 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, if it affects employment in one of
the specified ways.
The virtue of looking at comparators and paying heed to
gender non-conformity is that this process sheds light on the
interpretive question raised by Hively’s case: is sexual-orien-
tation discrimination a form of sex discrimination, given the
way in which the Supreme Court has interpreted the word
“sex” in the statute? The dissent criticizes us for not trying to
rule out sexual-orientation discrimination by controlling for it
in our comparator example and for not placing any weight on
the fact that if someone had asked Ivy Tech what its reasons
were at the time of the discriminatory conduct, it probably
would have said “sexual orientation,” not “sex.” We assume
that this is true, but this thought experiment does not answer
the question before us—instead, it begs that question. It com-
mits the logical fallacy of assuming the conclusion it sets out
to prove. It makes no sense to control for or rule out discrim-
ination on the basis of sexual orientation if the question before
us is whether that type of discrimination is nothing more or
less than a form of sex discrimination. Repeating that the two
What if Hively had been heterosexual, too, but did not get the job because
she failed to wear high heels, lipstick, or perfume like the other candi-
dates? A failure to discriminate against all women does not mean that an
employer has not discriminated against one woman on the basis of sex.
No. 15-1720 15
are different, as the dissent does at numerous points, also
does not advance the analysis.
2
As we noted earlier, Hively also has argued that action
based on sexual orientation is sex discrimination under the
associational theory. It is now accepted that a person who is
discriminated against because of the protected characteristic
of one with whom she associates is actually being disadvan-
taged because of her own traits. This line of cases began with
Loving, in which the Supreme Court held that “restricting the
freedom to marry solely because of racial classifications vio-
lates the central meaning of the Equal Protection Clause.”
388 U.S. at 12. The Court rejected the argument that miscege-
nation statutes do not violate equal protection because they
“punish equally both the white and the Negro participants in
an interracial marriage.” Id. at 8. When dealing with a statute
containing racial classifications, it wrote, “the fact of equal ap-
plication does not immunize the statute from the very heavy
burden of justification” required by the Fourteenth Amend-
ment for lines drawn by race. Id. at 9.
In effect, both parties to the interracial marriage were be-
ing denied important rights by the state solely on the basis of
their race. This point by now has been recognized for many
years. For example, in Parr v. Woodmen of the World Life Ins. Co.,
791 F.2d 888 (11th Cir. 1986), the Eleventh Circuit considered
a case in which a white man (Parr) married to an African-
American woman was denied employment by an insurance
company because of his interracial marriage. He sued under
Title VII, but the district court dismissed the complaint on the
ground that it failed to describe discrimination on the basis of
race. The court of appeals reversed. It held that “[w]here a
16 No. 15-1720
plaintiff claims discrimination based upon an interracial mar-
riage or association, he alleges, by definition, that he has been
discriminated against because of his race.” Id. at 892. It also
rejected the employer’s somewhat bizarre argument that,
given the allegation that it discriminated against all African-
Americans, Parr could not show that it would have made a
difference if he also had been African-American. Id. The court
contented itself with describing that as a lawsuit for another
day.
The Second Circuit took the same position two decades
later in Holcomb v. Iona Coll., 521 F.3d 130 (2d Cir. 2008), in
which a white former employee of the college sued, alleging
that it fired him from his job as associate coach of the men’s
basketball team because he was married to an African-Amer-
ican woman. The court held “that an employer may violate
Title VII if it takes action against an employee because of the
employee’s association with a person of another race.” Id. at
132. It stressed that the plaintiff’s case did not depend on
third-party injury. To the contrary, it held, “where an em-
ployee is subjected to adverse action because an employer dis-
approves of interracial association, the employee suffers dis-
crimination because of the employee’s own race.” Id. at 139.
Had the plaintiff been African-American, the question
whether race discrimination tainted the employer’s action
would have depended on different facts.
We have not faced exactly the same situation as that in Parr
and Holcomb, but we have come close. In Drake v. Minn. Min-
ing & Mfg. Co., 134 F.3d 878 (7th Cir. 1998), we encountered a
case in which white employees brought an action under Title
VII on the theory that they were being subjected to a hostile
working environment and ultimately discharged because of
No. 15-1720 17
their association with African-American co-workers. Because
the defendant conceded that an employee can bring an asso-
ciational race discrimination claim under Title VII, we had no
need to say much on that point. Instead, we assumed for the
sake of argument that an associational race discrimination
claim is possible, and that the key inquiries are whether the
employee has experienced discrimination and whether that
discrimination was because of race. Id. at 884. This is con-
sistent with Holcomb.
The fact that we now accept this analysis tells us nothing,
however, about the world in 1967, when Loving reached the
Supreme Court. The dissent implies that we are adopting an
anachronistic view of Title VII, enacted just three years before
Loving, but it is the dissent’s understanding of Loving and the
miscegenation laws that is an anachronism. Thanks to Loving
and the later cases we mentioned, society understands now
that such laws are (and always were) inherently racist. But as
of 1967 (and thus as of 1964), Virginia and 15 other states had
anti-miscegenation laws on the books. Loving, 388 U.S. at 6.
These laws were long defended and understood as non-dis-
criminatory because the legal obstacle affected both partners.
The Court in Loving recognized that equal application of a law
that prohibited conduct only between members of different
races did not save it. Changing the race of one partner made
a difference in determining the legality of the conduct, and so
the law rested on “distinctions drawn according to race,”
which were unjustifiable and racially discriminatory. 4 Loving,
4 The dissent seems to imply that the discrimination in Loving was
problematic because the miscegenation laws were designed to maintain
the supremacy of one race—and by extension that sexual orientation dis-
crimination is not a problem because it is not designed to maintain the
18 No. 15-1720
388 U.S. at 11. So too, here. If we were to change the sex of one
partner in a lesbian relationship, the outcome would be dif-
ferent. This reveals that the discrimination rests on distinc-
tions drawn according to sex.
The dissent would instead have us compare the treatment
of men who are attracted to members of the male sex with the
treatment of women who are attracted to members of the fe-
male sex, and ask whether an employer treats the men differ-
ently from the women. But even setting to one side the logical
fallacy involved, Loving shows why this fails. In the context of
interracial relationships, we could just as easily hold constant
a variable such as “sexual or romantic attraction to persons of
a different race” and ask whether an employer treated per-
sons of different races who shared that propensity the same.
That is precisely the rule that Loving rejected, and so too must
we, in the context of sexual associations.
The fact that Loving, Parr, and Holcomb deal with racial as-
sociations, as opposed to those based on color, national origin,
religion, or sex, is of no moment. The text of the statute draws
no distinction, for this purpose, among the different varieties
of discrimination it addresses—a fact recognized by the Hop-
kins plurality. See 490 U.S. at 244 n.9. This means that to the
extent that the statute prohibits discrimination on the basis of
the race of someone with whom the plaintiff associates, it also
prohibits discrimination on the basis of the national origin, or
the color, or the religion, or (as relevant here) the sex of the
supremacy of one sex. But while this was certainly a repugnant feature of
Virginia’s law, it was not the basis of the holding in Loving. Rather, the
Court found the racial classifications to be at odds with the Constitution,
“even assuming an even-handed state purpose to protect the ‘integrity’ of
all races.” Loving, 388 U.S. at 11 n.11.
No. 15-1720 19
associate. No matter which category is involved, the essence
of the claim is that the plaintiff would not be suffering the ad-
verse action had his or her sex, race, color, national origin, or
religion been different.
III
Today’s decision must be understood against the backdrop
of the Supreme Court’s decisions, not only in the field of em-
ployment discrimination, but also in the area of broader dis-
crimination on the basis of sexual orientation. We already
have discussed the employment cases, especially Hopkins and
Oncale. The latter line of cases began with Romer v. Evans, 517
U.S. 620 (1996), in which the Court held that a provision of the
Colorado Constitution forbidding any organ of government
in the state from taking action designed to protect “homosex-
ual, lesbian, or bisexual” persons, id. at 624, violated the fed-
eral Equal Protection Clause. Romer was followed by Lawrence
v. Texas, 539 U.S. 558 (2003), in which the Court found that a
Texas statute criminalizing homosexual intimacy between
consenting adults violated the liberty provision of the Due
Process Clause. Next came United States v. Windsor, 133 S.Ct.
2675 (2013), which addressed the constitutionality of the part
of the Defense of Marriage Act (DOMA) that excluded a
same-sex partner from the definition of “spouse” in other fed-
eral statutes. The Court held that this part of DOMA “vio-
late[d] basic due process and equal protection principles ap-
plicable to the Federal Government.” Id. at 2693. Finally, the
Court’s decision in Obergefell, supra, held that the right to
marry is a fundamental liberty right, protected by the Due
Process and Equal Protection Clauses of the Fourteenth
Amendment. 135 S.Ct. at 2604. The Court wrote that “[i]t is
now clear that the challenged laws burden the liberty of same-
20 No. 15-1720
sex couples, and it must be further acknowledged that they
abridge central precepts of equality.” Id.It would require considerable calisthenics to remove the
“sex” from “sexual orientation.” The effort to do so has led to
confusing and contradictory results, as our panel opinion il-
lustrated so well.5 The EEOC concluded, in its Baldwin deci-
sion, that such an effort cannot be reconciled with the straight-
forward language of Title VII. Many district courts have come
to the same conclusion. See, e.g., Boutillier v. Hartford Pub. Sch.,
No. 3:13-CV-01303-WWE, 2016 WL 6818348 (D. Conn. Nov.
17, 2016); U.S. Equal Emp’t Opportunity Comm’n v. Scott Med.
Ctr., P.C., No. CV 16-225, 2016 WL 6569233 (W.D. Pa. Nov. 4,
2016); Winstead v. Lafayette Cnty. Bd. of Cnty. Comm’rs, No.
1:16CV00054-MW-GRJ, 2016 WL 3440601 (N.D. Fla. June 20,
5The dissent contends that a fluent speaker of the English language
would understand that “sex” does not include the concept of “sexual ori-
entation,” and this ought to demonstrate that the two are easily distin-
guishable and not the same. But this again assumes the answer to the ques-
tion before us: how to interpret the statute in light of the guidance the Su-
preme Court has provided. The dissent is correct that the term “sexual
orientation” was not defined in the dictionary around the time of Title
VII’s enactment, but neither was the term “sexual harassment”—a concept
that, although it can be distinguished from “sex,” has at least since 1986
been included by the Supreme Court under the umbrella of sex discrimi-
nation. See WEBSTER’S NEW COLLEGIATE DICTIONARY (7th ed. 1963) (lack-
ing an entry for “sexual harassment” or “sexual orientation”); THE
AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (1st ed. 1969)
(same). The dissent postulates that it is implausible that a reasonable per-
son in 1964 could have understood discrimination based on sex to include
sexual orientation discrimination. But that reasonable person similarly
may not have understood it to include sexual harassment (and, by exten-
sion, not male-on-male sexual harassment). As Oncale said, we are con-
cerned with the provisions of the law, not the principal concerns of those
who wrote it. 523 U.S. at 80. The approach we have taken does just that.
No. 15-1720 21
2016); Isaacs v. Felder Servs., LLC, 143 F. Supp. 3d 1190 (M.D.
Ala. 2015); see also Videckis v. Pepperdine Univ., 150 F. Supp. 3d
1151 (C.D. Cal. 2015) (Title IX case, applying Title VII princi-
ples and Baldwin). Many other courts have found that gender-
identity claims are cognizable under Title VII. See, e.g., Rosa v.
Park W. Bank & Tr. Co., 214 F.3d 213, 215–16 (1st Cir. 2000)
(claim for sex discrimination under Equal Credit Opportunity
Act, analogizing to Title VII); Schwenk v. Hartford, 204 F.3d
1187, 1201–02 (9th Cir. 2000) (relying on Title VII cases to con-
clude that violence against a transsexual was violence because
of gender under the Gender Motivated Violence Act); Barnes
v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005); Smith v. City
of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004); Fabian v. Hosp. of
Cent. Conn., 172 F. Supp. 3d 509 (D. Conn. 2016); Schroer v. Bil-
lington, 577 F. Supp. 2d 293, 308 (D.D.C. 2008).
This is not to say that authority to the contrary does not
exist. As we acknowledged at the outset of this opinion, it
does. But this court sits en banc to consider what the correct
rule of law is now in light of the Supreme Court’s authorita-
tive interpretations, not what someone thought it meant one,
ten, or twenty years ago.6 The logic of the Supreme Court’s
6 The dissent criticizes us for this approach, but we find nothing sur-
prising in the fact that lower courts may have been wrong for many years
in how they understood the rule of law supplied by a statute or the Con-
stitution. Exactly this has happened before. For example, in Central Bank
of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994),
the Supreme Court disapproved a rule of statutory interpretation that all
eleven regional courts of appeals had followed—most for over three dec-
ades. When the Court decided Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S.
560 (2012) (deciding that the provision for compensating interpreters in 28
U.S.C. § 1920(6) does not include costs for document translation), it re-
jected the views of at least six circuits with regard to the proper reading of
the statute. 556 U.S. at 577 (Ginsburg, J., dissenting). See also Milner v.
22 No. 15-1720
decisions, as well as the common-sense reality that it is actu-
ally impossible to discriminate on the basis of sexual orienta-
tion without discriminating on the basis of sex, persuade us
that the time has come to overrule our previous cases that
have endeavored to find and observe that line.
For the sake of comprehensiveness, we note that Ivy Tech
presents two technical reasons why it thinks this case should
not be heard: waiver and sovereign immunity. Neither one
persuades us. Though Hively (acting pro se) did not advance
the same arguments to the district court, that court would
have been powerless to overturn precedent. We, in contrast,
are proceeding on a de novo basis, and we have the discretion
to address issues for the first time on appeal. Kaczmarek v. Red-
nour, 627 F.3d 586, 595 (7th Cir. 2010). We often exercise that
discretion to entertain arguments that turn on pure issues of
law. See, e.g., Amcast Indus. Corp. v. Detrex Corp., 2 F.3d 746, 750
(7th Cir. 1993) (concluding “[t]here will be no better time to
resolve the issue than now.”). There was no waiver. As for sov-
ereign immunity, Ivy Tech acknowledges that federal courts
have long concluded that Congress validly abrogated the
Dep’t of the Navy, 562 U.S. 562, 585 (2011) (Breyer, J., dissenting) (noting
that the Court’s decision rejected the interpretation of Exemption 2 to the
Freedom of Information Act that had been consistently followed or favor-
ably cited by every court of appeals to have considered the matter over a
30-year period). It would be more controversial to assert that this is one of
the rare statutes left for common-law development, as our concurring col-
league does. In any event, that common-law development, both for the
antitrust laws and any other candidates, is the responsibility of the Su-
preme Court. See State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (recognizing
that only the Supreme Court could jettison the per se rule against maxi-
mum pricefixing). All we can do is what we have done here: apply the
relevant Supreme Court decisions to the statute to the best of our ability.
No. 15-1720 23
state’s immunity with respect to intentional discrimination
claims under Title VII. Fitzpatrick v. Bitzer, 427 U.S. 445, 456
(1976); Nanda v. Bd. of Trs. of Univ. of Ill., 303 F.3d 817, 831 (7th
Cir. 2002). There is no merit whatsoever to that point.
We close by noting that we have decided only the issue put
before us. Additional complications can be saved for another
day, when they are actually involved in the case. Ivy Tech did
not contend, for example, that it was a religious institution
and the positions it denied to Hively related to a religious mis-
sion.7 See 42 U.S.C. § 2000e-1(a). Nor have we had any occa-
sion to consider the meaning of discrimination in the context
of the provision of social or public services. We hold only that
a person who alleges that she experienced employment dis-
crimination on the basis of her sexual orientation has put forth
a case of sex discrimination for Title VII purposes. It was
therefore wrong to dismiss Hively’s complaint for failure to
state a claim. The judgment of the district court is REVERSED
and the case is REMANDED for further proceedings.
7 Indeed, in contrast to cases in which a religious employer may be
exempted from Title VII liability because they have a bona fide need to
discriminate on the basis of a protected characteristic, we note that Ivy
Tech’s position does not seem to reflect any fundamental desire to be per-
mitted to engage in discrimination on the basis of sexual orientation. To
the contrary, Ivy Tech maintains that it has its own internal policy prohib-
iting such discrimination. It could repeal that policy tomorrow, however,
and so we will not look behind its decision to contest Hively’s claim.
24 No. 15-1720
POSNER, Circuit Judge, concurring. I agree that we should
reverse, and I join the majority opinion, but I wish to explore
an alternative approach that may be more straightforward.
It is helpful to note at the outset that the interpretation of
statutes comes in three flavors. The first and most conven-
tional is the extraction of the original meaning of the stat-
ute—the meaning intended by the legislators—and corre-
sponds to interpretation in ordinary discourse. Knowing
English I can usually determine swiftly and straightforward-
ly the meaning of a statement, oral or written, made to me in
English (not always, because the statement may be garbled,
grammatically intricate or inaccurate, obtuse, or complex
beyond my ability to understand).
The second form of interpretation, illustrated by the
commonplace local ordinance which commands “no vehicles
in the park,” is interpretation by unexpressed intent, where-
by we understand that although an ambulance is a vehicle,
the ordinance was not intended to include ambulances
among the “vehicles” forbidden to enter the park. This mode
of interpretation received its definitive statement in Black-
stone’s analysis of the medieval law of Bologna which stated
that “whoever drew blood in the streets should be punished
with the utmost severity.” William Blackstone, Commentaries
on the Laws of England *60 (1765). Blackstone asked whether
the law should have been interpreted to make punishable a
surgeon “who opened the vein of a person that fell down in
the street with a fit.” (Bleeding a sick or injured person was a
common form of medical treatment in those days.) Black-
stone thought not, remarking that as to “the effects and con-
sequence, or the spirit and reason of the law … the rule is,
where words bear either none, or a very absurd signification,
No. 15-1720 25
if literally understood, we must a little deviate from the re-
ceived sense of them.” Id. *59–60. The law didn’t mention
surgeons, but Blackstone thought it obvious that the legisla-
tors, who must have known something about the medical
activities of surgeons, had not intended the law to apply to
them. And so it is with ambulances in parks that prohibit
vehicles.
Finally and most controversially, interpretation can mean
giving a fresh meaning to a statement (which can be a state-
ment found in a constitutional or statutory text)—a meaning
that infuses the statement with vitality and significance to-
day. An example of this last form of interpretation—the
form that in my mind is most clearly applicable to the pre-
sent case—is the Sherman Antitrust Act, enacted in 1890,
long before there was a sophisticated understanding of the
economics of monopoly and competition. Times have
changed; and for more than thirty years the Act has been in-
terpreted in conformity to the modern, not the nineteenth-
century, understanding of the relevant economics. The Act
has thus been updated by, or in the name of, judicial inter-
pretation—the form of interpretation that consists of making
old law satisfy modern needs and understandings. And a
common form of interpretation it is, despite its flouting
“original meaning.” Statutes and constitutional provisions
frequently are interpreted on the basis of present need and
present understanding rather than original meaning—
constitutional provisions even more frequently, because
most of them are older than most statutes.
Title VII of the Civil Rights Act of 1964, now more than
half a century old, invites an interpretation that will update
it to the present, a present that differs markedly from the era
26 No. 15-1720
in which the Act was enacted. But I need to emphasize that
this third form of interpretation—call it judicial interpretive
updating—presupposes a lengthy interval between enact-
ment and (re)interpretation. A statute when passed has an
understood meaning; it takes years, often many years, for a
shift in the political and cultural environment to change the
understanding of the statute.
Hively, the plaintiff, claims that because she’s a lesbian
her employer declined to either promote her to full-time
employment or renew her part-time employment contract.
She seeks redress on the basis of the provision of Title VII
that forbids an employer “to fail or refuse to hire[,] or to dis-
charge[,] any individual, or otherwise to discriminate
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of
such individual’s … sex … .” 42 U.S.C. § 2000e-2(a)(1).
The argument that firing a woman on account of her be-
ing a lesbian does not violate Title VII is that the term “sex”
in the statute, when enacted in 1964, undoubtedly meant
“man or woman,” and so at the time people would have
thought that a woman who was fired for being a lesbian was
not being fired for being a woman unless her employer
would not have fired on grounds of homosexuality a man he
knew to be homosexual; for in that event the only difference
between the two would be the gender of the one he fired.
Title VII does not mention discrimination on the basis of
sexual orientation, and so an explanation is needed for how
53 years later the meaning of the statute has changed and the
word “sex” in it now connotes both gender and sexual orien-
tation.
No. 15-1720 27
It is well-nigh certain that homosexuality, male or female,
did not figure in the minds of the legislators who enacted
Title VII. I had graduated from law school two years before
the law was enacted. Had I been asked then whether I had
ever met a male homosexual, I would have answered: prob-
ably not; had I been asked whether I had ever met a lesbian I
would have answered “only in the pages of À la recherche du
temps perdu.” Homosexuality was almost invisible in the
1960s. It became visible in the 1980s as a consequence of the
AIDS epidemic; today it is regarded by a large swathe of the
American population as normal. But what is certain is that
the word “sex” in Title VII had no immediate reference to
homosexuality; many years would elapse before it could be
understood to include homosexuality.
A diehard “originalist” would argue that what was be-
lieved in 1964 defines the scope of the statute for as long as
the statutory text remains unchanged, and therefore until
changed by Congress’s amending or replacing the statute.
But as I noted earlier, statutory and constitutional provisions
frequently are interpreted on the basis of present need and
understanding rather than original meaning. Think for ex-
ample of Justice Scalia’s decisive fifth vote to hold that burn-
ing the American flag as a political protest is protected by
the free-speech clause of the First Amendment, provided
that it’s your flag and is not burned in circumstances in
which the fire might spread. Texas v. Johnson, 491 U.S. 397(1989); United States v. Eichman, 496 U.S. 310 (1990). Burning
a flag is not speech in the usual sense and there is no indica-
tion that the framers or ratifiers of the First Amendment
thought that the word “speech” in the amendment embraced
flag burning or other nonverbal methods of communicating.
28 No. 15-1720
Or consider the Supreme Court’s holding that the Fourth
Amendment requires the issuance of a warrant as a precon-
dition to searching a person’s home or arresting him there.
E.g., Johnson v. United States, 333 U.S. 10, 13–14 (1948). There
is nothing in the amendment about requiring a warrant ever.
All that the amendment says about warrants is that general
warrants, and warrants that are vague or issued without
probable cause, are invalid. In effect the Supreme Court re-
wrote the Fourth Amendment, just as it rewrote the First
Amendment in the flag-burning cases, and just as it rewrote
the Sherman Act, and just as today we are rewriting Title
VII. We are Blackstone’s heirs.
And there is more: think of how the term “cruel and un-
usual punishments” has morphed over time. Or how the
Second Amendment, which as originally conceived and en-
acted was about arming the members of the state militias
(now the National Guard), is today interpreted to confer gun
rights on private citizens as well. Over and over again, old
statutes, old constitutional provisions, are given new mean-
ing, as explained so eloquently by Justice Holmes in Missouri
v. Holland, 252 U.S. 416, 433–34 (1920):
When we are dealing with words that also are a constit-
uent act, like the Constitution of the United States, we
must realize that they have called into life a being the de-
velopment of which could not have been foreseen com-
pletely by the most gifted of its begetters. … The case be-
fore us must be considered in the light of our whole expe-
rience and not merely in that of what was said a hundred
years ago. The treaty in question does not contravene any
prohibitory words to be found in the Constitution. The on-
ly question is whether it is forbidden by some invisible ra-
diation from the general terms of the Tenth Amendment.
No. 15-1720 29
We must consider what this country has become in deciding
what that amendment has reserved (emphasis added).
So by substituting Title VII for “that amendment” in
Holmes’s opinion, discrimination on grounds of “sex” in Ti-
tle VII receives today a new, a broader, meaning. Nothing
has changed more in the decades since the enactment of the
statute than attitudes toward sex. 1964 was more than a dec-
ade before Richard Raskind underwent male-to-female sex
reassignment surgery and took the name Renée Richards,
becoming the first transgender celebrity; now of course
transgender persons are common.
In 1964 (and indeed until the 2000s), and in some states
until the Supreme Court’s decision in Obergefell v. Hodges,
135 S. Ct. 2584 (2015), men were not allowed to marry each
other, nor women allowed to marry each other. If in those
days an employer fired a lesbian because he didn’t like les-
bians, he would have said that he was not firing her because
she was a woman—he would not have fired her had she
been heterosexual—and so he was not discriminating on the
basis of sex as understood by the authors and ratifiers of Ti-
tle VII. But today “sex” has a broader meaning than the geni-
talia you’re born with. In Baskin v. Bogan, 766 F.3d 648 (7th
Cir. 2014), our court, anticipating Obergefell by invalidating
laws in Indiana and Wisconsin that forbade same-sex mar-
riage, discussed at length whether homosexual orientation is
innate or chosen, and found that the scientific literature
strongly supports the proposition that it is biological and in-
nate, not a choice like deciding how to dress. The position of
a woman discriminated against on account of being a lesbian
is thus analogous to a woman’s being discriminated against
on account of being a woman. That woman didn’t choose to
30 No. 15-1720
be a woman; the lesbian didn’t choose to be a lesbian. I don’t
see why firing a lesbian because she is in the subset of wom-
en who are lesbian should be thought any less a form of sex
discrimination than firing a woman because she’s a woman.
But it has taken our courts and our society a considerable
while to realize that sexual harassment, which has been per-
vasive in many workplaces (including many Capitol Hill of-
fices and, notoriously, Fox News, among many other institu-
tions), is a form of sex discrimination. It has taken a little
longer for realization to dawn that discrimination based on a
woman’s failure to fulfill stereotypical gender roles is also a
form of sex discrimination. And it has taken still longer, with
a substantial volume of cases struggling and failing to main-
tain a plausible, defensible line between sex discrimination
and sexual-orientation discrimination, to realize that homo-
sexuality is nothing worse than failing to fulfill stereotypical
gender roles.
It’s true that even today if asked what is the sex of plain-
tiff Hively one would answer that she is female or that she is
a woman, not that she is a lesbian. Lesbianism denotes a
form of sexual or romantic attraction; it is not a physical sex
identifier like masculinity or femininity. A broader under-
standing of the word “sex” in Title VII than the original un-
derstanding is thus required in order to be able to classify
the discrimination of which Hively complains as a form of
sex discrimination. That broader understanding is essential.
Failure to adopt it would make the statute anachronistic, just
as interpreting the Sherman Act by reference to its nine-
teenth-century framers’ understanding of competition and
monopoly would make the Sherman Act anachronistic.
No. 15-1720 31
We now understand that homosexual men and women
(and also bisexuals, defined as having both homosexual and
heterosexual orientations) are normal in the ways that count,
and beyond that have made many outstanding intellectual
and cultural contributions to society (think for example of
Tchaikovsky, Oscar Wilde, Jane Addams, André Gide,
Thomas Mann, Marlene Dietrich, Bayard Rustin, Alan Tu-
ring, Alec Guinness, Leonard Bernstein, Van Cliburn, and
James Baldwin—a very partial list). We now understand that
homosexuals, male and female, play an essential role, in this
country at any rate, as adopters of children from foster
homes—a point emphasized in our Baskin decision. The
compelling social interest in protecting homosexuals (male
and female) from discrimination justifies an admittedly
loose “interpretation” of the word “sex” in Title VII to em-
brace homosexuality: an interpretation that cannot be im-
puted to the framers of the statute but that we are entitled to
adopt in light of (to quote Holmes) “what this country has be-
come,” or, in Blackstonian terminology, to embrace as a sen-
sible deviation from the literal or original meaning of the
statutory language.
I am reluctant however to base the new interpretation of
discrimination on account of sex in Title VII on such cases as
Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998),
a case of sexual harassment of one man by other men, held
by the Supreme Court to violate Title VII’s prohibition of sex
discrimination. The Court’s opinion is rather evasive. I quote
its critical language:
As some courts have observed, male-on-male sexual
harassment in the workplace was assuredly not the princi-
pal evil Congress was concerned with when it enacted Ti-
tle VII. But statutory prohibitions often go beyond the
32 No. 15-1720
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 gov-
erned. Title VII prohibits “discriminat[ion] … because of
… sex” in the “terms” or “conditions” of employment. Our
holding that this includes sexual harassment must extend
to sexual harassment of any kind that meets the statutory
requirements.
Id. at 79–80.
Consider the statement in the quotation that “statutory
prohibitions often go beyond the principal evil to cover rea-
sonably comparable evils, and it is ultimately the provisions of
our laws rather than the principal concerns of our legislators
by which we are governed” (emphasis added). That could be
thought “originalism,” if by “provisions” is meant statutory
language. Consider too the statement in Oncale that “Title
VII prohibits ‘discriminat[ion] … because of … sex’ in the
‘terms’ or ‘conditions’ of employment. Our holding that this
includes sexual harassment must extend to sexual harass-
ment of any kind that meets the statutory requirements.”
Although “of any kind” signals breadth, it is narrowed by
the clause that follows: “that meets the statutory require-
ments.” So we’re back to the essential issue in this case,
which is whether passage of time and concomitant change in
attitudes toward homosexuality and other unconventional
forms of sexual orientation can justify a fresh interpretation
of the phrase “discriminat[ion] … because of … sex” in Title
VII, which fortunately however is a half-century-old statute
ripe for reinterpretation.
Another decision we should avoid in ascribing present
meaning to Title VII is Loving v. Virginia, 388 U.S. 1 (1967),
which Hively argues protects her right to associate intimate-
No. 15-1720 33
ly with a person of the same sex. That was a constitutional
case, based on race. It outlawed state prohibitions of interra-
cial marriage. It had nothing to do with the recently enacted
Title VII.
The majority opinion in the present case states that “Ivy
Tech is disadvantaging [Hively] because she is a woman,” not a
man, who wants to have romantic attachments with female
partners (emphasis in original). In other words, Ivy Tech is
disadvantaging her because she is a woman who is not con-
forming to its notions of proper behavior. That’s a different
type of sex discrimination from the classic cases of old in
which women were erroneously (sometimes maliciously)
deemed unqualified for certain jobs. That was the basis on
which fire departments, for example, discriminated against
women—an example of discrimination plainly forbidden by
the language of Title VII.
The most tenable and straightforward ground for decid-
ing in favor of Hively is that while in 1964 sex discrimination
meant discrimination against men or women as such and not
against subsets of men or women such as effeminate men or
mannish women, the concept of sex discrimination has since
broadened in light of the recognition, which barely existed in
1964, that there are significant numbers of both men and
women who have a sexual orientation that sets them apart
from the heterosexual members of their genetic sex (male or
female), and that while they constitute a minority their sexu-
al orientation is not evil and does not threaten our society.
Title VII in terms forbids only sex discrimination, but we
now understand discrimination against homosexual men
and women to be a form of sex discrimination; and to para-
34 No. 15-1720
phrase Holmes, “We must consider what this country has be-
come in deciding what that [statute] has reserved.”
The majority opinion states that Congress in 1964 “may
not have realized or understood the full scope of the words
it chose.” This could be understood to imply that the statute
forbade discrimination against homosexuals but the framers
and ratifiers of the statute were not smart enough to realize
that. I would prefer to say that theirs was the then-current
understanding of the key word—sex. “Sex” in 1964 meant
gender, not sexual orientation. What the framers and ratifi-
ers understandably didn’t understand was how attitudes
toward homosexuals would change in the following half
century. They shouldn’t be blamed for that failure of fore-
sight. 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.
Congress in the 1960s did not foresee the sexual revolution
of the 2000s. What our court announced in Doe v. City of
Belleville, 119 F.3d 563, 572 (7th Cir. 1997), is what Congress
had declared in 1964: “the traditional notion of ‘sex.’”
I would prefer to see us acknowledge openly that today
we, who are judges rather than members of Congress, are
imposing on a half-century-old statute a meaning of “sex
discrimination” that the Congress that enacted it would not
have accepted. This is something courts do fairly frequently
to avoid statutory obsolescence and concomitantly to avoid
placing the entire burden of updating old statutes on the leg-
islative branch. 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.
No. 15-1720 35
FLAUM, Circuit Judge, joined by RIPPLE, Circuit Judge, con-
curring. I join Parts I and II of the majority opinion and agree
that Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-2(a), does not preclude Professor Hively’s claim that
Ivy Tech Community College engaged in unlawful employ-
ment discrimination. I find the issue before us is simply
whether discriminating against an employee for being homo-
sexual violates Title VII’s prohibition against discriminating
against that employee because of their sex. In my view, the
answer is yes, and the statute’s text commands as much.
Kimberly Hively, who is openly lesbian, taught as a part-
time, adjunct professor at Ivy Tech Community College. Over
the course of her tenure, Professor Hively applied for full-
time positions with the College, and it rejected each of her ap-
plications. After the College did not renew her contract, Pro-
fessor Hively filed a pro se charge with the Equal Employment
Opportunity Commission, alleging that Ivy Tech’s refusal to
promote her constituted discrimination “based on [her] sex-
ual orientation.” Ivy Tech denied having engaged in any dis-
crimination and moved to dismiss Professor Hively’s com-
plaint for failing to state a claim on which relief could be
granted. Throughout the course of this litigation, I under-
stand the controlling question to have been the same: Does
discrimination based on Professor Hively’s “sexual orienta-
tion” constitute discrimination based on her “sex”? Under Ti-
tle VII’s text, it does.
Title VII provides:
It shall be an unlawful employment practice for an
employer—
36 No. 15-1720
(1) to fail or refuse to hire or to discharge any individual,
or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s
… sex[.]
42 U.S.C. § 2000e-2(a)(1). To prove her case, an employee
“must show that the employer actually relied on her gender1
in making its decision.” Price Waterhouse v. Hopkins, 490 U.S.
228, 251 (1989).
Assuming the facts as pled are true, as we must at this
stage of the litigation, Ivy Tech refused to promote Professor
Hively because she is homosexual. Professor Hively argues
that, in doing so, the College relied on her sex, because, but
for her sex, she would not have been denied a promotion (i.e.,
she would not have been denied a promotion if she were a
man who was sexually attracted to women). She also argues
that Ivy Tech’s actions constituted associational discrimina-
tion: The College took issue with Professor Hively’s intimate
association with women and refused to promote her. There is
no allegation, however, that the College refused to promote
women; nor is there an allegation that it refused to promote
those who associate with women. Rather, Ivy Tech’s alleged
animus was against Professor Hively’s sexual orientation—a
combination of these two factors—which the College argues
is not a trait enumerated in Title VII.
Setting aside the treatment in the majority and dissenting
opinions of sexual orientation as a freestanding concept, I
1 As the majority notes, the Supreme Court has often treated “gender”
and “sex” as synonymous. I agree that there is no need to inquire whether
they are the same for legal purposes in this case.
No. 15-1720 37
conclude discrimination against an employee on the basis of
their homosexuality is necessarily, in part, discrimination
based on their sex. Fundamental to the definition of homosex-
uality is the sexual attraction to individuals of the “same sex.”
Homosexual, MERRIAM-WEBSTER DICTIONARY ONLINE, available
at https://www.merriam-webster.com/dictionary/homosex-
ual (“[O]f, relating to, or characterized by a tendency to direct
sexual desire toward another of the same sex”) (emphasis
added) (last visited April 4, 2017); see also Homosexual, BLACK’S
LAW DICTIONARY (10th ed. 2014) (“Of relating to, or character-
ized by sexual desire for a person of the same sex.”) (emphasis
added); Homosexual, OXFORD ENGLISH DICTIONARY (5th ed.
1964) (“Having a sexual propensity for persons of one’s own
sex.”) (emphasis added). One cannot consider a person’s ho-
mosexuality without also accounting for their sex: doing so
would render “same” and “own” meaningless. As such, dis-
criminating against that employee because they are homosex-
ual constitutes discriminating against an employee because of
(A) the employee’s sex, and (B) their sexual attraction to indi-
viduals of the same sex. And “sex,” under Title VII, is an enu-
merated trait.
This raises the question: Does Title VII’s text require a
plaintiff to show that an employer discriminated against them
solely “because of” an enumerated trait? Again, I turn to the
text, which clearly states:
Except as otherwise provided in this subchapter, an
unlawful employment practice is established when the
complaining party demonstrates that … sex … was a
motivating factor for any employment practice, even though
other factors also motivated the practice.
38 No. 15-1720
42 U.S.C. § 2000e-2(m) (emphasis added). Congress added
this amendment to Title VII partially in response to the Su-
preme Court’s plurality decision in Hopkins, in which the
Court stated:
[S]ince we know that the words “because of” do not
mean “solely because of,” we also know that Title VII
meant to condemn even those decisions based on a
mixture of legitimate and illegitimate considerations.
When, therefore, an employer considers both gender
and legitimate factors at the time of making a decision,
that decision was “because of” sex and the other, legit-
imate considerations….We need not leave our com-
mon sense at the doorstep when we interpret a statute.
It is difficult for us to imagine that, in the simple words
“because of,” Congress meant to obligate a plaintiff to
identify the precise causal role played by legitimate
and illegitimate motivations in the employment deci-
sion she challenges. We conclude, instead, that Con-
gress meant to obligate her to prove that the employer
relied upon sex-based considerations in coming to its
decision.
490 U.S. at 241–242 (footnote omitted). The Court made clear
that “[t]he critical inquiry … is whether gender was a factor in
the employment decision” when it was made. Id. at 241 (em-
phasis added). So if discriminating against an employee be-
cause she is homosexual is equivalent to discriminating
against her because she is (A) a woman who is (B) sexually
No. 15-1720 39
attracted to women, then it is motivated, in part, by an enu-
merated trait: the employee’s sex. That is all an employee
must show to successfully allege a Title VII claim.2
Cases analyzing employment actions based on interracial
relationships provide an apt illustration. Although this Cir-
cuit has not yet addressed whether claims based on a theory
of associational discrimination are cognizable under Title VII,
I agree with the majority that the Second Circuit’s analysis in
Holcomb v. Iona College, 521 F.3d 130 (2d Cir. 2008), is persua-
sive. There, the court concluded that the college had violated
Title VII after firing a white basketball coach because of his
marriage to a black woman. The court explained, “[W]here an
employee is subjected to adverse action because an employer
disapproves of interracial association, the employee suffers
discrimination because of the employee’s own race.” Id. at 139.
This comports with Title VII’s text. Interracial relationships
are comprised of (A) an individual of one race, and (B) an-
other individual of a different race. Without considering the
first individual’s race, the word “different” is meaningless.
2 The foregoing analysis should obtain even if an employer allegedly
discriminates against all homosexual employees. In that case, the em-
ployer’s discrimination across sexes does not demonstrate that sex is irrel-
evant, but rather that each individual has a plausible sex-based discrimi-
nation claim. See City of Los Angeles, Dep’t of Water and Power v. Manhart,
435 U.S. 702, 708 (1978) (“[Title VII] makes it unlawful ‘to discriminate
against any individual … because of such individual’s … sex[.]’ The statute’s
focus on the individual is unambiguous.” (quoting 42 U.S.C.
§ 2000e-2(a)(1))). When confronting claims that are inherently based in
part on sex, such as discrimination against homosexuals, each employee’s
claim satisfies Title VII on its face, no matter the sex of any other employee
who experienced discrimination.
40 No. 15-1720
Consequently, employment discrimination based on an em-
ployee’s interracial relationship is, in part, tied to an enumer-
ated trait: the employee’s race. This type of discrimination is
prohibited by Title VII.
The same principle applies here. Ivy Tech allegedly re-
fused to promote Professor Hively because she was homosex-
ual—or (A) a woman who is (B) sexually attracted to women.
Thus, the College allegedly discriminated against Professor
Hively, at least in part, because of her sex. I conclude that Title
VII, as its text provides, does not allow this.
No. 15-1720 41
SYKES, Circuit Judge, with whom BAUER and KANNE,
Circuit Judges, join, dissenting. Any case heard by the full
court is important. This one is momentous. All the more
reason to pay careful attention to the limits on the court’s
role. The question before the en banc court is one of statuto-
ry interpretation. The majority deploys a judge-empowering,
common-law decision method that leaves a great deal of
room for judicial discretion. So does Judge Posner in his
concurrence. Neither is faithful to the statutory text, read
fairly, as a reasonable person would have understood it
when it was adopted. The result is a statutory amendment
courtesy of unelected judges. Judge Posner admits this; he
embraces and argues for this conception of judicial power.
The majority does not, preferring instead to smuggle in the
statutory amendment under cover of an aggressive reading
of loosely related Supreme Court precedents. Either way, the
result is the same: the circumvention of the legislative pro-
cess by which the people govern themselves.
Respect for the constraints imposed on the judiciary by a
system of written law must begin with fidelity to the tradi-
tional first principle of statutory interpretation: When a
statute supplies the rule of decision, our role is to give effect
to the enacted text, interpreting the statutory language as a
reasonable person would have understood it at the time of
enactment. 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.
In a handful of statutory contexts, Congress has vested
the federal courts with authority to consider and make new
rules of law in the common-law way. The Sherman Act is the
archetype of the so-called “common-law statutes,” but there
42 No. 15-1720
are very few of these and Title VII is not one of them. Nw.
Airlines, Inc. v. Transp. Workers Union of Am., AFL-CIO,
451 U.S. 77, 95–97 (1981); id. at 98 n.42. So our role is inter-
pretive only; we lack the discretion to ascribe to Title VII a
meaning it did not bear at its inception. Sitting en banc
permits us to overturn our own precedents, but in a statuto-
ry case, we do not sit as a common-law court free to engage
in “judicial interpretive updating,” as Judge Posner calls it, 1
or to do the same thing by pressing hard on tenuously
related Supreme Court opinions, as the majority does.
Judicial statutory updating, whether overt or covert, can-
not be reconciled with the constitutional design. The Consti-
tution establishes a procedure for enacting and amending
statutes: bicameralism and presentment. See U.S. CONST.
art. I, § 7. Needless to say, statutory amendments brought to
you by the judiciary do not pass through this process. That is
why a textualist decision method matters: When we assume
the power to alter the original public meaning of a statute
through the process of interpretation, we assume a power
that is not ours. The Constitution assigns the power to make
and amend statutory law to the elected representatives of the
people. However welcome today’s decision might be as a
policy matter, it comes at a great cost to representative self-
government.
I
Title VII of the Civil Rights Act of 1964 makes it unlawful
for an employer “to fail or refuse to hire or to discharge any
1 He describes this method of statutory interpretation throughout his
opinion and gives it the name “judicial interpretive updating” on
page 27.
No. 15-1720 43
individual, or otherwise to discriminate against any individ-
ual … because of such individual’s race, color, religion, sex,
or national origin.” 42 U.S.C. § 2000e-2(a)(1). Sexual orienta-
tion is not on the list of forbidden categories of employment
discrimination, and we have long and consistently held that
employment decisions based on a person’s sexual orientation
do not classify people on the basis of sex and thus are not
covered by Title VII’s prohibition of discrimination “because
of sex.” Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058,
1062 (7th Cir. 2003); Spearman v. Ford Motor Co., 231 F.3d
1080, 1085 (7th Cir. 2000); Hamner v. St. Vincent Hosp. &
Health Care Ctr., Inc., 224 F.3d 701, 704 (7th Cir. 2000); Ulane v.
E. Airlines, Inc., 742 F.2d 1081, 1085 (7th Cir. 1984). This
interpretation has been stable for many decades and is
broadly accepted; all circuits agree that sexual-orientation
discrimination is a distinct form of discrimination and is not
synonymous with sex discrimination. See Majority Op. at
pp. 3–4 (collecting cases).
Today the court jettisons the prevailing interpretation
and installs the polar opposite. Suddenly sexual-orientation
discrimination is sex discrimination and thus is actionable
under Title VII. What justification is offered for this radical
change in a well-established, uniform interpretation of an
important—indeed, transformational—statute? My col-
leagues take note of the Supreme Court’s “absence from the
debate.” Id. at p. 4. What debate? There is no debate, at least
not in the relevant sense. Our long-standing interpretation of
Title VII is not an outlier. From the statute’s inception to the
present day, the appellate courts have unanimously and
repeatedly read the statute the same way, as my colleagues
must and do acknowledge. Id. at pp. 3–4. The Supreme
Court has had no need to weigh in, and the unanimity
44 No. 15-1720
among the courts of appeals strongly suggests that our long-
settled interpretation is correct.
Of course there is a robust debate on this subject in our
culture, media, and politics. Attitudes about gay rights have
dramatically shifted in the 53 years since the Civil Rights Act
was adopted. Lambda Legal’s proposed new reading of
Title VII—offered on behalf of plaintiff Kimberly Hively at
the appellate stage of this litigation—has a strong foothold in
current popular opinion.
This striking cultural change informs a case for legislative
change and might eventually persuade the people’s repre-
sentatives to amend the statute to implement a new public
policy. But it does not bear on the sole inquiry properly
before the en banc court: Is the prevailing interpretation of
Title VII—that discrimination on the basis of sexual orienta-
tion is different in kind and not a form of sex discrimina-
tion—wrong as an original matter?
A
On that question Lambda Legal has not carried its bur-
den of legal persuasion. To be clear, I agree with my col-
leagues that the proposed new interpretation is not neces-
sarily incorrect simply because no one in the 1964 Congress
that adopted Title VII intended or anticipated its application
to sexual-orientation discrimination. The subjective inten-
tions of the legislators do not matter. Statutory interpretation
is an objective inquiry that looks for the meaning the statuto-
ry language conveyed to a reasonable person at the time of
enactment. The objective meaning of the text is not delimited
by what individual lawmakers specifically had in mind
when they voted for the statute. The Supreme Court made
No. 15-1720 45
this point clear in Oncale when it said that “statutory prohi-
bitions often go beyond the principal evil to cover reasona-
bly comparable evils, and it is ultimately the provisions of
our laws rather than the principal concerns of our legislators
by which we are governed.” Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 79 (1998). Broadly worded statutes
are regularly applied to circumstances beyond the subjective
contemplation of the lawmakers who adopted the text.
That much is uncontroversial. Indeed, it derives from a
foundational rule-of-law principle:
[I]t is simply incompatible with democratic
government, or indeed, even with fair govern-
ment, to have the meaning of a law determined
by what the lawgiver meant, rather than by
what the lawgiver promulgated. … [Ours is a]
government of laws, not of men. Men may in-
tend what they will; but it is only the laws that
they enact which bind us.
ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL
COURTS AND THE LAW 17 (Amy Gutmann ed., 1997).
So as a matter of interpretive method, I agree with my
colleagues that the scope of Title VII is not limited by the
subjective intentions of the enacting legislators. Or as Chief
Judge Wood puts it in her elegant opinion for the en banc
majority, the expectations of the enacting legislators “cannot
stand in the way of the provisions of the law that are on the
books.” 2 Majority Op. at p. 10.
2 Like my colleagues, I too decline to defer to the EEOC’s decision in
Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 15,
2015). Majority Op. at pp. 8–9. This is not a case about agency deference.
46 No. 15-1720
B
That is where our agreement ends. The en banc majority
rests its new interpretation of sex discrimination on a
thought experiment drawn from the “tried-and-true” com-
parative method of proof often used by plaintiffs in discrim-
ination cases. Id. at p. 11. The majority also invokes Loving v.
Virginia, 388 U.S. 1 (1967), the Supreme Court’s historic
decision striking down Virginia’s miscegenation laws under
the Fourteenth Amendment’s Equal Protection Clause, as
well as cases involving sex stereotyping, most prominently
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
But the analysis must begin with the statutory text; it
largely ends there too. Is it even remotely plausible that in
1964, when Title VII was adopted, a reasonable person
competent in the English language would have understood
that a law banning employment discrimination “because of
sex” also banned discrimination because of sexual orienta-
tion? The answer is no, of course not.
“It is a fundamental canon of statutory construction that,
unless otherwise defined, words will be interpreted as
taking their ordinary, contemporary, common meaning.”
Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 876 (2014) (internal
quotation marks omitted). The word “contemporary” as
used here means contemporaneous with the statute’s enactment,
not “contemporary” as in “now.” Id. at 876–77; see also
Jackson v. Blitt & Gaines, P.C., 833 F.3d 860, 863 (7th Cir. 2016)
(citing Sandifer and explaining that statutory interpretation
“look[s] to the meaning of the word[s] at the time the statute
was enacted”). The interpretive inquiry looks to the original
public meaning of the statutory text.
No. 15-1720 47
Title VII does not define discrimination “because of sex.”
In common, ordinary usage in 1964—and now, for that
matter—the word “sex” means biologically male or female; it
does not also refer to sexual orientation. See, e.g., Sex, THE
AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE
(1st ed. 1969) (defining “sex” as “[t]he property or quality by
which organisms are classified according to their reproduc-
tive functions[;] [e]ither of two divisions, designated male
and female, of this classification”); Sex, NEW OXFORD
AMERICAN DICTIONARY (3d ed. 2010) (defining “sex” as
“either of the two main categories (male and female) into
which humans and many other living things are divided on
the basis of their reproductive functions”); Sex, THE
AMERICAN HERITAGE DESK DICTIONARY (5th ed. 2013) (defin-
ing “sex” as “[e]ither of the two divisions, female and male,
by which most organisms are classified on the basis of their
reproductive organs and functions[;] [t]he condition or
character of being female or male”).
To a fluent speaker of the English language—then and
now—the ordinary meaning of the word “sex” does not
fairly include the concept of “sexual orientation.” 3 The two
terms are never used interchangeably, and the latter is not
subsumed within the former; there is no overlap in meaning.
Contrary to the majority’s vivid rhetorical claim, it does not
3 The term “sexual orientation” does not appear in dictionaries at or
around the time of Title VII’s enactment. According to the current
definition, it is not synonymous with “sex.” Sexual Orientation, OXFORD
ENGLISH DICTIONARY (2009 ed.) (“Originally: (the process of) orientation
with respect to a sexual goal, potential mate, partner, etc. Later chiefly: a
person’s sexual identity in relation to the gender to whom he or she is
usually attracted; (broadly) the fact of being heterosexual, bisexual, or
homosexual.”).
48 No. 15-1720
take “considerable calisthenics” to separate the two. Majority
Op. at p. 20. The words plainly describe different traits, and
the separate and distinct meaning of each term is easily
grasped. More specifically to the point here, discrimination
“because of sex” is not reasonably understood to include
discrimination based on sexual orientation, a different
immutable characteristic. Classifying people by sexual
orientation is different than classifying them by sex. The two
traits are categorically distinct and widely recognized as
such. There is no ambiguity or vagueness here.
Accordingly, as we said more than three decades ago in
Ulane, Title VII’s prohibition of discrimination “because of
sex” makes it unlawful for an employer “to discriminate
against women because they are women and against men
because they are men.” 742 F.2d at 1085. Because sexual-
orientation discrimination is not synonymous with sex
discrimination in ordinary usage, Title VII does not prohibit
sexual-orientation discrimination. Not expressly (obviously),
and not by fair implication either.
C
This commonsense understanding is confirmed by the
language Congress uses when it does legislate against sexual-
orientation discrimination. For example, the Violence
Against Women Act prohibits funded programs and activi-
ties from discriminating “on the basis of actual or perceived
race, color, religion, national origin, sex, gender identity, …
sexual orientation, or disability.” 42 U.S.C. § 13925(b)(13)(A)
(emphases added). If sex discrimination is commonly under-
stood to encompass sexual-orientation discrimination, then
listing the two categories separately, as this statute does, is
needless surplusage. The federal Hate Crimes Act is another
No. 15-1720 49
example. It imposes a heightened punishment for causing or
attempting to cause bodily injury “to any person, because of
the actual or perceived religion, national origin, gender,
sexual orientation, gender identity, or disability of any per-
son.” 18 U.S.C. § 249(a)(2)(A) (emphases added). 4
Other examples can be found elsewhere in the U.S. Code.
See, e.g., 42 U.S.C. § 3716(a)(1)(C) (providing federal assis-
tance to state and local authorities for the investigation and
prosecution of certain crimes “motivated by prejudice based
on the actual or perceived race, color, religion, national
origin, gender, sexual orientation, gender identity, or disability
of the victim”) (emphases added); 20 U.S.C. § 1092(f)(1)(F)(ii)
(requiring colleges and universities to collect and report
information regarding crimes on campus, including “crimes
involving bodily injury to any person, in which the victim is
intentionally selected because of the actual or perceived race,
gender, religion, national origin, sexual orientation, gender
identity, ethnicity, or disability of the victim”) (emphases
added); 42 U.S.C. 294e-1(b)(2) (requiring applicants for a
federal mental-health education-grant program to demon-
strate participation “of individuals and groups from differ-
ent racial, ethnic, cultural, geographic, religious, linguistic,
and class backgrounds, and different genders and sexual
orientations”) (emphases added).
State and local antidiscrimination laws likewise distin-
guish between sex discrimination and sexual-orientation
discrimination by listing them separately as distinct forms of
4 A different subsection of the hate-crimes law imposes the same height-
ened penalty for causing or attempting to cause bodily injury because of
a person’s race. 18 U.S.C. § 249(a)(1).
50 No. 15-1720
unlawful discrimination. See, e.g., Illinois Human Rights Act,
775 ILL. COMP. STAT. 5/1-103(Q) (defining “unlawful discrim-
ination” as “discrimination against a person because of his
or her race, color, religion, national origin, ancestry, age, sex,
marital status, order of protection status, disability, military
status, sexual orientation, pregnancy, or unfavorable discharge
from military service”) (emphases added); Iowa Civil Rights
Act, IOWA CODE § 216.7(1)(a) (prohibiting discrimination in
public accommodations “because of race, creed, color, sex,
sexual orientation, gender identity, national origin, religion, or
disability”) (emphases added); WIS. STAT. § 106.52(3) (using
similar language to prohibit discrimination in public ac-
commodations); Minnesota Human Rights Act, MINN. STAT.
§ 363A.11(1)(a)(1) (same); OR. REV. STAT. § 659A.403(1)
(same); Washington Civil Rights Act, WASH. REV. CODE
§ 49.60.030(1) (declaring as a civil right the “right to be free
from discrimination because of race, creed, color, national
origin, sex, honorably discharged veteran or military status,
sexual orientation, or the presence of any … disability”)
(emphases added); D.C. CODE § 2-1402.31(a) (forbidding
certain forms of discrimination “based on the actual or
perceived: race, color, religion, national origin, sex, age, …
[or] sexual orientation … of any individual”) (emphases
added); BLOOMINGTON, IND., CODE § 2.21.030(10) (defining a
“discriminatory practice” as “the exclusion of a person by
another person from equal opportunities because of race,
religion, color, sex, national origin, ancestry, sexual orienta-
tion, gender identity, disability, housing status or status as a
veteran”) (emphases added); INDIANAPOLIS, IND., CODE
§ 581-101 (defining prohibited “discriminatory practices” to
include denying employment and educational opportunity,
access to public accommodations, and acquisition of real
No. 15-1720 51
estate “based on race, color, religion, ancestry, age, national
origin, disability, sex, sexual orientation, gender identity, or
United States military service veteran status”) (emphases
added).
I could go on, but the point has been made. This uni-
formity of usage is powerful objective evidence that sexual-
orientation discrimination is broadly recognized as an
independent category of discrimination and is not synony-
mous with sex discrimination.
II
My colleagues in the majority superficially acknowledge
Ulane’s “truism” that sex discrimination is discrimination
based on a person’s biological sex. Majority Op. at p. 3. As
they see it, however, even if sex discrimination is understood
in the ordinary way, sexual-orientation discrimination is sex
discrimination because “it is actually impossible to discrimi-
nate on the basis of sexual orientation without discriminat-
ing on the basis of sex.” Id. at p. 22.
Not true. An employer who refuses to hire homosexuals
is not drawing a line based on the job applicant’s sex. He is
not excluding gay men because they are men and lesbians
because they are women. His discriminatory motivation is
independent of and unrelated to the applicant’s sex. Sexism
(misandry and misogyny) and homophobia are separate
kinds of prejudice that classify people in distinct ways based
on different immutable characteristics. Simply put, sexual-
orientation discrimination doesn’t classify people by sex; it
doesn’t draw male/female distinctions but instead targets
homosexual men and women for harsher treatment than
heterosexual men and women.
52 No. 15-1720
The majority opinion merges these two distinct catego-
ries of discrimination by misapplying the comparative
method of proof often used by plaintiffs in discrimination
cases. As a threshold matter, it’s important to note that as
used here, the comparative method is not serving its usual
and intended purpose; it is not invoked as a method of proof
or a technique for evaluating the sufficiency of the plaintiff’s
allegations or evidence. That’s because Hively has not, of
course, raised a claim of sex discrimination. She does not
allege that Ivy Tech refused to promote her to full-time
professor and canceled her part-time teaching contract
because of her sex; she does not claim that she was treated
differently than a similarly situated man. She alleges that Ivy
Tech took these adverse actions against her because she is a
lesbian, not because she is a woman. So the majority’s discus-
sion of what Hively “alleges,” id. at p. 11, followed by an
incantation of the Rule 12(b)(6) standard for evaluating the
sufficiency of the plaintiff’s factual allegations (“[w]e take
the facts in the light most favorable to her”), id., is seriously
misleading.
This appeal has nothing to do with Hively’s factual alle-
gations. We have only a legal question about the meaning of
Title VII. Lambda Legal is advancing a creative new legal
argument for reinterpreting Title VII, deploying the compara-
tive method not as a method of proof (its normal and in-
tended function) but as a thought experiment with the end
of imbuing the statute with a new meaning that it did not
bear at its inception.
This highlights a deeper problem with the court’s com-
parative analysis. The purpose of the comparative method is
to isolate whether a statutorily forbidden motivation is at
No. 15-1720 53
work as a factual matter—in a sex-discrimination case, to
isolate whether the defendant employer took a particular
adverse employment action against a particular female
employee because she is a woman or against a particular
male employee because he is a man. Title VII’s “intentional
discrimination provision prohibits certain motives” for taking
adverse job actions, EEOC v. Abercrombie & Fitch Stores, Inc.,
135 S. Ct. 2028, 2033 (2015), so as a required factual element
of the claim, the plaintiff must prove that the employer
actually acted with the intent or motive to discriminate on
the basis of a statutorily protected trait when he made the
employment decision in question, Ricci v. DeStefano, 557 U.S.
557, 577 (2009) (citing Watson v. Forth Worth Bank & Tr.,
487 U.S. 977, 986 (1988)).
The comparative method of proof is a useful technique
for uncovering the employer’s real motive for taking the
challenged action. Comparing the plaintiff to a similarly
situated employee of the opposite sex can help the fact
finder determine whether the employer was actually moti-
vated by the plaintiff’s sex or acted for some other reason. It’s
a device for ferreting out a prohibited discriminatory motive
as an actual cause of the adverse employment action; it does
this by controlling for other possible motives. If a female
plaintiff can point to a male employee who is identical to her
in every material respect and was treated more favorably,
then the fact finder can draw an inference that the unfavora-
ble treatment was actually motivated by the plaintiff’s sex.
Here the majority is not using the comparative method to
isolate whether Ivy Tech was actually motivated by Hively’s
sex when it refused to promote her to full-time professor and
canceled her part-time teaching contract. To repeat, Hively
54 No. 15-1720
does not make that allegation. Her factual claim is that Ivy
Tech refused to promote her and canceled her contract
because she is a lesbian. The only question for us is whether
that claim—her real claim—is actionable under Title VII as a
matter of law. That’s a pure question of statutory interpreta-
tion.
But the comparative method of proof is an evidentiary
test; it is not an interpretive tool. It tells us nothing about the
meaning or scope of Title VII. In ordinary English usage,
sexual-orientation discrimination is a distinct form of dis-
crimination and is not synonymous with sex discrimination.
That’s the plain meaning of Title VII’s text as originally
understood. An evidentiary test like the comparative method
of proof has no work to do here and is utterly out of place.
Moreover, the majority distorts the comparative method
by opportunistically framing the comparison. If the aim is to
isolate actual discriminatory motive based on the plaintiff’s
sex, then we must hold everything constant except the plain-
tiff’s sex. But my colleagues load the dice by changing two
variables—the plaintiff’s sex and sexual orientation—to
arrive at the hypothetical comparator. The court’s reasoning
essentially distills to this: If we compare Hively, a homosex-
ual woman, to hypothetical Professor A, a heterosexual man,
we can see that Ivy Tech is actually disadvantaging Hively
because she is a woman. Majority Op. at pp. 11–12.
As a test for isolating an actual case of sex discrimination,
that way of framing the comparative question doesn’t do the
trick. Simply put, the comparison can’t do its job of ruling in
sex discrimination as the actual reason for the employer’s
decision (by ruling out other possible motivations) if we’re
not scrupulous about holding everything constant except the
No. 15-1720 55
plaintiff’s sex. That includes the plaintiff’s sexual orientation.
If we’re really serious about trying to isolate whether sex
discrimination played a role in a specific employment deci-
sion, the test must exclude other factors that may have been
decisive.
For the comparison to be valid as a test for the role of sex
discrimination in this employment decision, the proper
comparison is to ask how Ivy Tech treated qualified gay
men. If an employer is willing to hire gay men but not
lesbians, then the comparative method has exposed an actual
case of sex discrimination. If, on the other hand, an employer
hires only heterosexual men and women and rejects all
homosexual applicants, then no inference of sex discrimina-
tion is possible, though we could perhaps draw an inference
of sexual-orientation discrimination.
But of course my colleagues are not actually trying to iso-
late sex discrimination as the real motivation for Ivy Tech’s
decision. They are not, that is, testing for a true case of sex
discrimination. They are using the comparative method as a
rhetorical device to conjure an entirely new understanding
of the term “sex discrimination” for use in the Title VII
context, one that denies the reality that sex and sexual
orientation are different traits and that classifying people by
sexual orientation is not the same as classifying them by sex.
This is artifice, not interpretation.
My colleagues insist that “[t]he virtue of looking at com-
parators … is that this process sheds light on the interpretive
question raised by Hively’s case: is sexual-orientation dis-
crimination a form of sex discrimination, given the way in
which the Supreme Court has interpreted the word ‘sex’ in
the statute?” Majority Op. at p. 14. I have two responses.
56 No. 15-1720
First, at the risk of repeating myself, the point of “looking at
comparators” in Title VII cases is to see if the evidentiary
record permits a factual inference of actual discriminatory
motive; the comparative method has no interpretive function.
Second, the Supreme Court has never deployed an abstract
version of the comparative method of proof to illuminate the
original meaning or scope of Title VII, nor has it even hinted
that such an abstraction is a proper interpretive tool. For
good reason. Ordinary people do not use abstract thought
experiments to ascribe meaning to texts. 5
5 Judge Flaum’s concurrence offers a somewhat different way to think
about sexual-orientation discrimination: “Fundamental to the definition
of homosexuality is the sexual attraction to individuals of the ‘same
sex.’… One cannot consider a person’s homosexuality without also
accounting for their sex: doing so would render ‘same’ … meaningless.”
Flaum, J., concurring, at p. 37. But an employer who categorically won’t
hire homosexuals is not “accounting for” a job applicant’s sex in the
sense meant by antidiscrimination law; a hiring policy of “no homosexu-
als need apply” is gender blind. The next sentence in the analysis
likewise doesn’t follow: “As such, discriminating against that employee
because they are homosexual constitutes discriminating against an
employee because of (A) the employee’s sex, and (B) their sexual attrac-
tion to individuals of the same sex.” Id. Part (B) is true; part (A) is not. An
employer who refuses to hire a lesbian applicant because she is a lesbian
only “accounts for” her sex in the limited sense that he notices she is a
woman. But that’s not the object of the employer’s discriminatory intent,
not even in part. Her sex isn’t a motivating factor for the employer’s
decision; the employer objects only to her sexual orientation. This
attempt to conceptually split homosexuality into two parts—a person’s
sex and his or her sexual attraction to persons of the same sex—doesn’t
make sexual-orientation discrimination actionable as sex discrimination.
No. 15-1720 57
III
A
The majority also draws on Loving, the Supreme Court’s
iconic decision invalidating Virginia’s miscegenation statutes
on equal-protection grounds. This case is not a variant of
Loving. Miscegenation laws plainly employ invidious racial
classifications; they are inherently racially discriminatory. In
contrast, sexual-orientation discrimination springs from a
wholly different kind of bias than sex discrimination. The
two forms of discrimination classify people based on differ-
ent traits and thus are not the same.
In Loving, Virginia tried to defend its antimiscegenation
regime by insisting that miscegenation statutes do not
actually discriminate based on race because both the black
and white spouses in an interracial marriage are punished
equally. 388 U.S. at 8 (“[T]he State contends that, because its
miscegenation statutes punish equally both the white and
the Negro participants in an interracial marriage, these
statutes, despite their reliance on racial classifications[,] do
not constitute an invidious discrimination based upon
race.”). The Supreme Court made short work of that spe-
cious argument: “[W]e deal [here] with statutes containing
racial classifications, and the fact of equal application does
not immunize the statute[s] from the very heavy burden of
justification which the Fourteenth Amendment has tradi-
tionally required of state statutes drawn according to race.”
Id. at 9.
The Court went on to explain that the “clear and central
purpose of the Fourteenth Amendment was to eliminate all
official state sources of invidious racial discrimination in the
58 No. 15-1720
States.” Id. at 10. The Court continued with this: “There can
be no question but that Virginia’s miscegenation statutes rest
solely upon distinctions drawn according to race. The stat-
utes proscribe generally accepted conduct if engaged in by
members of different races.” Id. at 11. After explaining that
the “[p]enalties for miscegenation arose as an incident to
slavery,” id. at 6, and are “designed to maintain White
Supremacy,” 6 id. at 11, the Court announced its holding:
“There can be no doubt that restricting the freedom to marry
solely because of racial classifications violates the central
meaning of the Equal Protection Clause,” id. at 12.
As these passages from the Court’s opinion make clear,
Loving rests on the inescapable truth that miscegenation laws
are inherently racist. They are premised on invidious ideas
about white superiority and use racial classifications toward
the end of racial purity and white supremacy. Sexual-
orientation discrimination, on the other hand, is not inher-
ently sexist. No one argues that sexual-orientation discrimi-
nation aims to promote or perpetuate the supremacy of one
sex. In short, Loving neither compels nor supports the major-
ity’s decision to upend the long-settled understanding that
sex discrimination and sexual-orientation discrimination are
distinct.
6 Virginia’s highest court had identified what it said were the state’s
“legitimate purposes” for its miscegenation laws: “‘to preserve the racial
integrity of [the state’s] citizens,’ and to prevent ‘the corruption of blood,’
‘a mongrel breed of citizens,’ and ‘the obliteration of racial pride.’”
Loving v. Virginia, 388 U.S. 1, 7 (1967) (quoting Naim v. Naim, 87 S.E.2d
749, 756 (1955)). This, the Supreme Court said, was “obviously an
endorsement of the doctrine of White Supremacy.” Id.No. 15-1720 59
For the same reason, the majority’s reliance on Parr,
Holcomb, and Drake, which translated Loving to the Title VII
context, is entirely inapt. An employer who refuses to hire or
fires an employee based on his interracial marriage is obvi-
ously drawing invidious racial classifications akin to those
inherent in Virginia’s miscegenation laws. Loving’s equal-
protection holding extends to Title VII racial-discrimination
claims because those claims share the same contextual
foundation. They arise in a nation whose original sin is
slavery, where some states sought to perpetuate white
supremacy as recently as a half century ago, and where the
vestiges of this iniquitous history persist in our workplaces
and in other institutions of our society. The Equal Protection
Clause and Title VII’s prohibition of racial discrimination in
the workplace both operate to curtail the evil of racism
inherent in antimiscegenation. That explains why Loving
applies to Title VII racial-discrimination claims but is not a
warrant for reading sexual-orientation discrimination into
the statute.
B
The majority also relies on cases involving sex stereotyp-
ing, most notably the Supreme Court’s decision in Price
Waterhouse v. Hopkins. More specifically, my colleagues
conclude that a claim of sexual-orientation discrimination is
indistinguishable from a claim involving sex stereotyping.
Majority Op. at pp. 12–15. I disagree. Nothing in Hopkins
altered the traditional understanding that sexual-orientation
discrimination is a distinct type of discrimination and is not
synonymous with sex discrimination.
As a preliminary matter, neither Hopkins nor any other
decision of the Supreme Court establishes an independent
60 No. 15-1720
cause of action for, or “doctrine” or “theory” of, “sex stereo-
typing.” 7 Hopkins held only that the presence of sex stereo-
typing by an employer “can certainly be evidence” of sex
discrimination; to prove her case, the plaintiff must always
prove that “the employer actually relied on her gender in
making its decision.” 490 U.S. at 251 (second emphasis
added).
It’s also often overlooked that the lead opinion in Hopkins
was a four-Justice plurality, not a majority opinion. Id. at 231.
Two Justices concurred in the judgment only, and they said
nothing about sex stereotyping as a “theory” of sex discrim-
ination. Id. at 258–61 (White, J., concurring in the judgment);
id. at 261–79 (O’Connor, J., concurring in the judgment).
Here’s another point that’s often missed: Although the facts
in Hopkins involved sex stereotyping, the actual legal issue
dealt with the allocation of burdens of proof on the element
of causation in a mixed-motives Title VII case. The plurality
opinion made that clear in its very first paragraph: “We
granted certiorari to resolve a conflict among the Courts of
Appeals concerning the respective burdens of proof of a
defendant and plaintiff in a suit under Title VII when it has
been shown that an employment decision resulted from a
mixture of legitimate and illegitimate motives.” Id. at 232.
The plurality devised a burden-shifting approach for use in
mixed-motive cases. Id. at 258. Justices White and O’Connor
concurred in the judgment, each filing a separate opinion
agreeing with the burden-shifting method but taking issue
with the plurality’s discussion of the substantive standard of
7 Some lower courts use the phrase “gender nonconformity” inter-
changeably with “sex stereotyping,” but the Supreme Court has never
used that term.
No. 15-1720 61
causation. Id. at 258–61 (White, J., concurring in the judg-
ment); id. at 261–79 (O’Connor, J., concurring in the judg-
ment).
Only a very short passage in the very long plurality opin-
ion actually addresses the subject of sex stereotyping. The
plurality simply accepted the district court’s factual finding
that sex stereotyping played a role in Price Waterhouse’s
decision to place Ann Hopkins’s bid for partnership on hold.
Id. at 236–37 (describing the trial judge’s factual findings); see
also id. at 251 (“As to the existence of sex stereotyping in this
case, we are not inclined to quarrel with the District Court’s
conclusion that a number of the partners’ comments showed
sex stereotyping at work.”). Regarding the legal significance
of sex stereotyping as evidence of sex discrimination, the
plurality had only this to say:
In saying that gender played a motivating part
in an employment decision, we mean that, if
we asked the employer at the moment of the
decision what its reasons were and if we re-
ceived a truthful response, one of those reasons
would be that the applicant or employee was a
woman. In the specific context of sex stereotyp-
ing, an employer who acts on the basis of a be-
lief that a woman cannot be aggressive, or that
she must not be, has acted on the basis of gen-
der.
….
As for the legal relevance of sex stereotyping,
we are beyond the day when an employer
could evaluate employees by assuming or in-
62 No. 15-1720
sisting that they matched the stereotype asso-
ciated with their group, for “‘[i]n forbidding
employers to discriminate against individuals
because of their sex, Congress intended to
strike at the entire spectrum of disparate
treatment of men and women resulting from
sex stereotypes.’” Los Angeles Dept. of Water and
Power v. Manhart, 435 U.S. 702, 707, n.13 (1978),
quoting Sprogis v. United Air Lines, Inc., 444 F.2d
1194, 1198 (7th Cir. 1971). An employer who
objects to aggressiveness in women but whose
positions require this trait places women in an
intolerable and impermissible catch 22; out of a
job if they behave aggressively and out of a job
if they do not. Title VII lifts women out of this
bind.
Id. at 250–51 (footnote omitted). Nothing in this passage
casts any doubt on the settled, long-understood distinction
between sex discrimination and sexual-orientation discrimi-
nation. 8
8 The two cases cited in this passage of the plurality opinion were
straightforward cases of sex discrimination. Manhart was a challenge to
an employer’s policy that required female employees to make larger
contributions to the employee pension fund than male employees. City of
L.A. Dep’t of Water & Power v. Manhart, 435 U.S. 702, 704–06 (1978). The
Court noted that the employer’s policy was not based on sex stereotypes
but rested on actuarial generalizations that “the parties accept as unques-
tionably true: Women, as a class, do live longer than men.” Id. at 707.
Still, the Court held that requiring women to pay more into the fund
than men was a plain case of sex discrimination. Id. at 707–10.
Sprogis was a challenge to an airline’s rule that female flight attend-
ants, but not male flight attendants, must be unmarried. Sprogis v. United
No. 15-1720 63
To put the matter plainly, heterosexuality is not a female
stereotype; it is not a male stereotype; it is not a sex-specific
stereotype at all. An employer who hires only heterosexual
employees is neither assuming nor insisting that his female
and male employees match a stereotype specific to their sex.
He is instead insisting that his employees match the domi-
nant sexual orientation regardless of their sex. Sexual-
orientation discrimination does not classify people according
to invidious or idiosyncratic male or female stereotypes. It
does not spring from a sex-specific bias at all.
The point is easy to see if we take the question posed by
the plurality opinion in Hopkins and map it onto this case.
Hively suspects that the real reason Ivy Tech rejected her
repeated applications for promotion is her sexual orienta-
tion. Assume for the moment that her suspicion is correct. If
we asked Ivy Tech “at the moment of the decision what its
reasons were and if we received a truthful response,” id. at
250, would it be reasonable to expect Ivy Tech to respond
that it rejected her applications because she is a woman? No.
If Ivy Tech responded truthfully, it would confess that its
decisions were based on Hively’s sexual orientation, not her
sex.
So it’s a serious mistake to think that Hopkins either sup-
ports or requires a new interpretation of Title VII that
equates sexual-orientation discrimination with sex discrimi-
nation. To the contrary, Hopkins does not even gesture in that
direction. If the lower-court decisions involving “sex stereo-
Airlines, Inc., 444 F.2d 1194, 1196 (7th Cir. 1971). This too was a straight-
forward case of sex discrimination. Id. at 1198 (holding that “it is clear
that United has contravened [Title VII] by applying one standard for
men and one for women”).
64 No. 15-1720
typing” are a confusing hodgepodge—and I agree that they
are—the confusion stems from an unfortunate tendency to
read Hopkins for more than it’s worth. That’s not a reason to
embed the confusion in circuit law.
C
Neither does Oncale compel or support today’s decision.
Oncale held only that same-sex sexual harassment may, in an
appropriate case, support a claim under Title VII provided
that it “meets the statutory requirements.” 523 U.S. at 79–80.
The Court reiterated that in all sex-discrimination cases,
including sexual-harassment cases, “[t]he critical issue,
Title VII’s text indicates, is whether members of one sex are
exposed to disadvantageous terms or conditions of employ-
ment to which members of the other sex are not exposed.”
Id. at 80 (quotation marks omitted).
The plaintiff in Oncale, a male roustabout on an oil plat-
form in the Gulf of Mexico, alleged that his male coworkers
regularly subjected him to “sex-related, humiliating” verbal
and physical harassment. Id. at 77. The lower courts dis-
missed his claim based on an approach that categorically
rejected same-sex harassment cases under Title VII. The
Supreme Court reversed, holding that “nothing in Title VII
necessarily bars a claim of discrimination ‘because of … sex’
merely because the plaintiff and the defendant (or the per-
son charged with acting on behalf of the defendant) are of
the same sex.” Id. at 79.
To sketch the circumstances in which evidence of same-
sex harassment might support a claim of sex discrimination,
the Court first explained how evidence of workplace har-
assment permits an inference of sex discrimination as a
No. 15-1720 65
general matter. The Court explained, for example, that in an
opposite-sex harassment case involving “explicit or implicit
proposals of sexual activity,” an inference of sex discrimina-
tion is easy to draw because “it is reasonable to assume those
proposals would not have been made to someone of the
same sex.” Id. at 80. But the same is not true in a case involv-
ing same-sex harassment unless the evidence shows that the
harasser is homosexual; only then would it be reasonable to
infer that the victim was targeted because of his sex. 9 Id.The Court offered two other examples of conduct that
might support an inference of sex discrimination in a same-
sex harassment case. The first is when a harasser uses “such
sex-specific and derogatory terms” as to make it clear that he
“is motivated by general hostility to the presence of [mem-
bers of the same sex] in the workplace.” Id. The second is
when the plaintiff offers “direct comparative evidence about
how the alleged harasser treated members of both sexes in a
mixed-sex workplace.” Id. at 80–81. Because the record was
undeveloped on these points, the Court remanded for
further proceedings. Id. at 82.
9 Note that the Court’s focus is on the sexual orientation of the harasser,
not the sexual orientation or attributes of the harassment victim. Some
lower courts have missed this important point and mistakenly allowed
same-sex harassment cases to proceed to the extent that the victim
alleges he suffered harassment based on his supposed “gay behaviors.”
This has predictably drawn an objection that the law should not distin-
guish between claims of discrimination for “acting gay” and claims of
discrimination for “being gay.” Indeed it should not. On a proper
understanding of the limits of Hopkins and Oncale, neither claim is
actionable under Title VII. Both are claims of sexual-orientation discrimi-
nation, which is not covered by the statute.
66 No. 15-1720
In short, in authorizing claims of same-sex harassment as
a theoretical matter, the Court carefully tethered all sexual-
harassment claims to the statutory requirement that the
plaintiff prove discrimination “because of sex.” Nothing in
Oncale eroded the distinction between sex discrimination
and sexual-orientation discrimination or opened the door to
a new interpretation of Title VII.
Oncale was not a revolutionary decision. In contrast, to-
day’s decision by the en banc court works a profound trans-
formation of Title VII by any measure.
D
The majority also finds support for its decision in “the
backdrop of the Supreme Court’s decisions … in the area of
broader discrimination on the basis of sexual orientation,”
citing Romer v. Evans, 517 U.S. 620 (1996); Lawrence v. Texas,
539 U.S. 558 (2003); United States v. Windsor, 133 S. Ct. 2675(2013); and Obergefell v. Hodges, 135 S. Ct. 2584 (2015). Majori-
ty Op. at p. 19.
But the majority’s position is actually irreconcilable with
these cases. First, Lawrence was decided solely under the Due
Process Clause; it was not an equal-protection case. 539 U.S.
at 564. In the other cases, far from collapsing the well-
understood distinction between sex discrimination and
sexual-orientation discrimination, the Court actually pre-
served it. The Court assigned these two distinct forms of
discrimination to different analytical categories for purposes
of equal-protection scrutiny. If sex discrimination and
sexual-orientation discrimination were really one and the
same, then the Court would have applied the intermediate
standard of scrutiny that governs judicial review of laws that
No. 15-1720 67
classify people by sex. See United States v. Virginia, 518 U.S.
515, 531 (1996). It did not do so.
E
Finally, drawing especially on Obergefell, my colleagues
worry that adhering to the long-settled interpretation of
Title VII “creates ‘a paradoxical legal landscape in which a
person can be married on Saturday and then fired on
Monday for just that act.’” Majority Op. at p. 5 (quoting
Hively v. Ivy Tech Cmty. Coll., 830 F.3d 698, 714 (7th Cir.
2016)). The concern is understandable, but my colleagues
conflate the distinction between state action, which is subject
to constitutional limits, and private action, which is regulat-
ed by statute. The Due Process and Equal Protection Clauses
are constitutional restraints on government. Title VII is a
statutory restraint on employers. The legal regimes differ
accordingly. Any discrepancy is a matter for legislative, not
judicial, correction.
* * *
If Kimberly Hively was denied a job because of her sexu-
al orientation, she was treated unjustly. But Title VII does not
provide a remedy for this kind of discrimination. The argu-
ment that it should must be addressed to Congress.
IV
This brings me to my last point, which concerns the prin-
ciple of stare decisis. The general rule is that “stare decisis …
has ‘special force’” in the domain of statutory interpretation
“for ‘Congress remains free to alter what we have done.’”
John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 139
(2008) (quoting Patterson v. McLean Credit Union, 491 U.S.
164, 172–73 (1989)). Special force or no, the foundational
68 No. 15-1720
assumptions of the rule of law and due regard for the pru-
dential virtues of stability, reliability, and predictability
should inspire some caution here. A decision to upend
settled precedent “demands special justification.” Michigan v.
Bay Mills Indian Cmty., 134 S. Ct. 2024, 2036 (2014) (quoting
Arizona v. Rumsey, 467 U.S. 203, 212 (1984)). That “special
justification” must at least begin with a convincing case that
the challenged precedent is gravely wrong.
As I’ve explained, a convincing case has not been made.
If more is needed, consider for a moment the next step in
this litigation. When this case returns to the district court, it
will not matter whether the evidence shows that Ivy Tech
rejected Hively in favor of male applicants, female appli-
cants, or a combination of men and women. If the facts show
that Ivy Tech hired heterosexuals for the six full-time posi-
tions, then the community college may be found liable for
discriminating against Hively because of her sex. 10 That will be
so even if all six positions were filled by women. Try explaining
that to a jury.
* * *
In the end, today’s decision must be recognized for what
it is: a new form of Title VII liability based on imputed mo-
tive, not actual motive. The majority’s new rule—that sexual-
orientation discrimination = sex discrimination—imputes to
the employer a motive that is not, and need not be, present
in fact. Liability under this new “theory” of sex discrimina-
tion does not require the jury to find that the employer’s
decision was actually motivated by the plaintiff’s sex. That’s a
10 Unless, of course, Ivy Tech can show that Hively was less qualified
than the applicants who were hired.
No. 15-1720 69
necessary predicate for liability in all other sex-
discrimination cases, but not here. Discrimination “because
of sex” need not be found as a fact; instead, the court will
impute the statutorily forbidden motive to the employer if
the plaintiff proves discrimination “because of sexual orien-
tation.”
* * *
This brings me back to where I started. The court’s new
liability rule is entirely judge-made; it does not derive from
the text of Title VII in any meaningful sense. The court has
arrogated to itself the power to create a new protected
category under Title VII. Common-law liability rules may
judicially evolve in this way, 11 but statutory law is funda-
mentally different. Our constitutional structure requires us
to respect the difference.
It’s understandable that the court is impatient to protect
lesbians and gay men from workplace discrimination with-
out waiting for Congress to act. Legislative change is ardu-
ous and can be slow to come. But we’re not authorized to
amend Title VII by interpretation. The ordinary, reasonable,
and fair meaning of sex discrimination as that term is used
in Title VII does not include discrimination based on sexual
orientation, a wholly different kind of discrimination. Be-
cause Title VII does not by its terms prohibit sexual-
orientation discrimination, Hively’s case was properly
dismissed. I respectfully dissent.
11 Though the state supreme courts, not the federal courts, are empow-
ered to adjust common-law rights and remedies.