Hively v. Ivy Tech Community College of Indiana

Kimberly HIVELY, Plaintiff-Appellant, TECH

IVY COMMUNITY COLLEGE INDIANA,

OF Defendant-

Appellee.

No. 15-1720 Appeals,

United States Court of

Seventh Circuit.

Argued November April

Decided NY, Fund, York,

cation New for Plaintiff- Appellant. Bartrom, Clagg,

Adam Lee Jason T. LLP, Attorneys, Thornburg Barnes & IN, Maley, At- Wayne, Fort John Robert LLP, Thornburg India- torney, Barnes & IN, napolis, Defendant-Appellee. for Minter, Attorney, Price Na- Shannon Rights, tional Center for Lesbian San Francisco, CA, National for Amicus Curiae Rights. Center for Lesbian Bonauto, Attorney, Gay Mary Lisa & Defenders, Boston, Lesbian Advocates & MA, GLBTQ Legal Ad- for Amicus Curiae vocates & Defenders. Coleman, Attorney, Em- Equal

Gail S. Commission, ployment Opportunity Wash- DC, ington, Equal Em- Amicus Curiae Opportunity ployment Commission. Mar, Attorney, American Ria Tabacco York, NY, Union, New Civil Liberties Amicus Curiae America Civil Liberties Union. Cravath, Chesler, Attorney,

Evan Moore, York, NY, for Ami- Swaine & New Congress. cus Curiae Five Members WOOD, Judge, Before Chief FLAUM, BAUER, POSNER, EASTERBROOK, RIPPLE, KANNE, ROVNER, WILLIAMS, SYKES, and HAMILTON, Judges. Circuit WOOD, Judge. Chief Rights of the Civil Act of 1964 Title VII subject to employers makes it unlawful for the Act to discriminate on the basis of color, sex, “race, person’s religion, or na- 2000e-2(a). § origin....” tional U.S.C. years, appeals the courts of many For Nevins, country prohibition Gregory Attorney, R. Lambda this understood Atlanta, Fund, to exclude dis- Legal Defense & Education sex discrimination Davidson, GA, Attorney, person’s on the basis of a sexu- Lambda crimination Jon W. Court, Fund, Inc., Supreme howev- Legal Defense And Education al orientation. CA, er, In Gonzalez-Pagan, spoken question. has never to that Angeles, Los Omar case, asked to take a Edu- we have been Attorney, Legal Lambda Defense & Ctr., light Inc., fresh look at Care position our devel- 224 F.3d 701 2000), opments extending granted at the the district court Tech’s so, over two have done motion and Hively’s decades. We dismissed case with prejudice. we today conclude that discrimination on

the basis of sexual orientation is a form of represented Now Legal Lambda sex discrimination. therefore reverse We Fund, Defense & Hively Education has judgment the district dismissing court’s appealed to this After an court. exhaustive Kimberly against Hively’s Ivy suit Tech exploration of the governing law claims Community College and remand for fur- involving discrimination based on sexual proceedings. ther orientation, panel affirmed. Hively v. (7th Ivy Coll., Tech Cmty. 830 F.3d 698

I 2016). analysis Cir. It began its noting openly began lesbian. She idea that discrimination based on adjunct teaching part-time, professor as a orientation somehow distinct Ivy Community at from sex College’s originated Tech South Airlines, dicta in campus Hoping Inc., Bend Ulane v. improve 2000. Eastern 1984). (7th lot, 742 her she at least F.2d 1081 applied for six full-time Cir. Ulane stated (as matters) if positions and between 2009 2014. These resolved that Title unsuccessful; prohibition efforts VII’s yet, against were worse sex discrimina July “implies tion part-time 2014 her contract was that it is unlawful to discrimi nate Believing Ivy against they renewed. Tech women because was are women spurning against they of her sexual orien- and because men tation, truism, men.” Id. at pro charge she filed a se 1085. From this with the we deduced that had Equal Employment Opportunity “Congress nothing Commis- more 13, than the sion on December 2013. It was short traditional notion ‘sex’ in mind when it voted sex point: and to outlaw discrimina Belleville, Ill., tion. ...” City Doe v. 119 I applied positions have for several at (7th 563, 1997), F.3d granted, 572 Cir. cert. fulltime, TECH, years. IVY the last 5 nom. judgment City vacated sub Belle- I being believe I am blocked from full- Doe, 1001, 1183, v. ville 523 118 U.S. S.Ct. just time I without cause. (1998), abrogated by 140 L.Ed.2d 313 On believe I am being against discriminated Servs., Inc., cale v. Sundowner my based on I sexual orientation. believe Offshore 75, 118 998, 140 523 U.S. L.Ed.2d 201 I have been discriminated (1998). that my rights under Title Rights Civil 1964 Act of were violated. court, Later including cases in this letter, Prods., receiving right-to-sue Weyauwega After she Hamm v. Milk 332 (7th 2003), Hamner, filed this district court F.3d (again action 1058 Cir. se). acting Co., pro responded Spearman Tech with a v. Ford Motor 231 F.3d (7th 1080, 2000), motion accepted to dismiss for failure to state a 1085 have Cir. claim can granted. on which It this as settled Almost all of our sister relief law. argued sexual orientation is not a circuits have understood law protected See, Higgins way. e.g., class under Title VII or 42 same v. New Bal (which Shoe, Inc., 252, § 194 disregard U.S.C. 1981 we will ance Athletic F.3d 259 (1st opinion). 1999); v. Relying the remainder of this Cir. Bumble & Bum Dawson ble, (2d 211, 2005); a line of exemplified by this court’s cases 398 F.3d 217 Cir. Prow Forms, Inc., 285, Hosp. Hamner v. St. el v. Wise Bus. 579 F.3d Vincent Health 342 228, 1775, (3d 2009); Wrightson v. Pizza Hut 109 S.Ct.

290 Cir. (4th Am., 138, Inc., (1989), 143 Cir. 99 F.3d and Oncale Sundowner Offshore 998, 1996); Corp., Servs., 75, 597 F.2d Blum v. Oil 140 Inc., Gulf (5th 1979); 936, (1998). v. AT&T Cir. Kalich 938 held L.Ed.2d 201 Price Waterhouse (6th LLC, F.3d 471 Cir. Mobility, 679 practice gender stereotyping 2012); v. A.G. Edwards & Williamson prohibition against falls within VII’s (8th 1989); Sons, Inc., 876 F.2d Cir. discrimination, and Oncale clarified Div., 413 F.3d Support Medina v. Income it makes no difference if the sex of the (10th 2005); Fredette v. Cir. not) (or is the same as the sex harasser is Assocs., Mgmt. F.3d BVP panel frankly acknowl of the victim. Our 1997). A of the Eleventh panel difficult it is “to extricate the edged how Circuit, that it bound recognizing gender nonconformity claims from the sex Blum, precedent in the Fifth Circuit’s ual orientation claims.” 830 F.3d 936, (by 2-1 recently F.2d reaffirmed commented, effort, That has led to a vote) recognize it could not hodge-podge of cases.” Id. at “confused claims under Ti orientation discrimination gay, It noted that “all lesbian and also Georgia Reg’l Hosp., tle Evans v. VII. fail the persons comply bisexual with 2017). 1248,1255-57 On the F.3d Cir. gender stereotypes sine non of qua —that hand, recently other the Second Circuit relationships all men should form intimate openly gay plaintiff found that an male women, only and all women should with gender stereotyping a claim of pleaded relationships form intimate with that was sufficient to survive dismissal. Especially Supreme men.” Id. since the panel The court that one lacked observed recognition that the Due Process Court’s power the to reconsider the court’s earlier the Equal and Protection Clauses of Con holding that sexual orientation decision protect right stitution of same-sex cou cognizable discrimination claims were not - marry, Obergefell Hodges, v. ples to under Title Christiansen v. Omnicom VII. U.S. -, 2584, 135 S.Ct. Inc., 16-748, 195, 2017 Group, No. 852 F.3d (2015), from the cur bizarre results ensue 2017) (2d (per Mar. WL 1130183 noted, regime. panel rent As the it creates curiam). Nonetheless, two of the three paradoxical legal landscape “a which a judges, relying many argu on of the same Saturday can married on person be here, in concur presented ments noted Monday just then on that act.” fired they thought ought rence that their court Finally, panel high at 714. 830 F.3d revisiting precedent to consider sharp tension between a rule lighted 198-99, appropriate case. Id. at 2017 WL recognize that discrimination fails (Katzmann, J., concurring). at *2 person of the sex whom a on the basis from debate Notable its absence discrimination, a form of associates is sex interpretation scope over the of the proper rule, recognized Loving since v. and the discrimination is of Title VII’s ban Virginia, 388 U.S. Supreme the United States Court. (1967), that discrimination on L.Ed.2d Supreme That is not because the Court a person the basis of the race with whom subject entirely has left this to the side. To of racial associates is a form discrimina contrary, recognized, over panel as the tion. years the Court has issued several problems, panel all Despite these opinions that are relevant to the issue correctly noted that it was bound Key among those decisions are before us. to which we referred Hopkins, precedents, Price court’s Waterhouse ments) thought handwriting earlier. It for whatever light they may shed; signaling might their demise on the one could use a combination of these wall, empowered but it did not feel See, e.g., methods. Jr., William Eskridge, message holding. translate that into a “Un- Philip Frickey, & Legislation and Statuto til writing (2d comes the form of a 2007); ry Interpretation ed. Antonin Supreme opinion or legislation,” new Garner, Bryan Scalia & A. Reading Law: 830 F.3d at it felt bound to adhere to Interpretation Legal (2012); Texts light our earlier decisions. In of the impor- Vermeule, Adrian Judging Under Uncer issue, recognizing tance tainty: An Institutional Theory Legal power of the full court to overrule earlier (2006); Interpretation Nourse, Victoria F. bring decisions and to our law into con- A Theory Decision Statutory Interpre formity with the Court’s teach- Legislative History Rules, tation: by the ings, majority judges regular (2012); 122 Yale L.J. 70 Sunstein, Cass R. active service voted to rehear this case en Interpreting Statutes in the Regulatory banc. State, (1989). 103 Harv. L. Rev. 407 people Few would insist that there

II is a need to delve secondary into sources A if the plain statute is on its face. Even if The question before us is not whether pellucid, it is not the best source for di can, should, this court or “amend” Title sambiguation is the broader context of the protected category YII to add a new to the legislature case, statute that the this—in “race, color, sex, familiar religion, list or Congress passed. This is uncontroversial — 2000e-2(a). origin.” § national 42 U.S.C. reading when the seems consistent with Obviously beyond power. that lies our We the conventional wisdom about the reach must decide instead what it means to dis- of the law. It becomes somewhat harder sex, partic- criminate on the basis of and in to if language swallow the reveals sus ular, whether actions taken on the basis of pected or actual consequences. unintended sexual orientation are a subset of actions It is then that some thought have taken on the basis of sex.1 pure This is a legislative history should be used to block question statutory interpretation and a particular reading Legisla of a statute. judiciary’s thus well within the compe- however, history, notoriously tive is malle tence. able. Even temptation try worse is the to Much ink spilled has been about the to divine significance the of unsuccessful proper way to go legislative about the task of statuto- change efforts to the law. stick, ry interpretation. One can to the Those can mean anything, failures almost greatest possible, extent language ranging necessity to the from the lack of for a legislature; enacted the proposed change already one could con- because the law legislative history sult up accomplishes goal, the that led to the desired to the un law; desirability the bill that became one could exam- change the because a ma (ie. legislature jority ine later actions of the legislature happy with the efforts to way currently amend the law and later enaet- interpreting courts Court, present purposes, Supreme appear 1. For we have no need to to have used "sex” “gender” synonymously. decide whether discrimination basis of Should a case "gender” legal purposes require is for the same as arise in which the facts us to examine "sex,” (if terms, any) discrimination on the basis of which is the differences between the we courts, Many including term. will do so then. Baldwin v. of sexual orientation. See the non-en- basis law, irrelevance of to the Foxx, nothing Appeal to No. actment, it is attributable EEOC when 2015). grid- (July point Our legislative logrolling more than WL nothing duty with its mer- defer to to do not that we have a to lock that had here is pres- position. We assume its. the EEOC’s duty no exists. But such purposes ent fact great store on the Ivy Tech sets may have position the Commission’s frequently has considered Congress think that Congress to caused some “sex- to add the words amending Title VII sexual orien- is needed to carve legislation prohibited to the list of ual orientation” statute, put it in. In out of the tation characteristics, done so. yet it has never end, no idea what inference we have circuits have also noted of our sister Many congressional inaction or later draw from however, view, simply it is In our this fact. enactments, way there is no inference to draw reliable too difficult knowing explains each individual what legislative initiatives these truncated from votes, explains what much less member’s goalposts on them. The opinion to rest our body as a whole to the failure of moving years, over the have been light change on the 1964 statute. has shed more Supreme Court already in the language that scope of the guided task is in interpretive Our

statute: no sex discrimination. approach Court’s stead much of the fact that The dissent makes Oncale, case of where it closely related thirty years acting more than Congresses ques say as it addressed the had this of Title VII made use passage after the covers sexual tion whether prohibit orientation” to the term “sexual by a man on a male harassment inflicted on that basis or violence victim: Against statutes such as Violence Hate Act and the federal Crimes Women justification the statuto- We see no to answer gets But this us no closer Act. our for a ry language precedents hand, Congress question the ing excluding rule same-sex categorical certainly to use both a belt may choose coverage claims from the harassment objectives, to achieve its suspenders and observed, have Title As some courts VII. “sexual orien the fact that “sex” and in sexual harassment the male-on-male may overlap in later tation” discrimination workplace assuredly princi- not the determining help no in statutes is of with Congress was concerned pal evil discrimination whether sexual orientation Title But when it enacted VII. of sex for the on the basis is discrimination go beyond princi- the prohibitions often See, e.g., McEvoy v. of Title VII. purposes reasonably comparable pal evil to cover Servs., Inc., 671, F.3d 677 Barge IEI 622 evils, ultimately provisions the and it is 2010) (“Congress may choose a principal rather than the of our laws approach promote to belt-and-suspenders legislators by our which we concerns of objectives....”). policy its “discri- governed. prohibits in ... of ... sex” the Moreover, closely asso- agency minat[ion] the most law, employment. “terms” or “conditions” Equal Employ- the ciated with Commission, this includes sexual holding in an- Our that Opportunity 2015 ment sexual harassment must extend to position now takes the that nounced that it that meets the any harassment of kind against sex discrimi- prohibition Title VTI’s statutory requirements. the discrimination on encompasses nation

345 79-80, 118 The cance of plaintiffs employ- 523 U.S. at S.Ct. 998. sex to the er’s not been clearer: the fact that decision: has she situation could have described a which, in all Congress holding not have antici other enacting may things constant only sex, changing pated particular application the law she would have way? in been treated the same way provisions cannot of the The second stand Loving relies on the v. Virginia, of the that are on the books. law 1, 1817, (1967), 87 S.Ct. 18 L.Ed.2d 1010 It is neither here nor there therefore cases, line of argues which she protect her Congress that enacted Civil right intimately to associate a person 1964 Rights Act in and chose include of the Although analysis same sex. employment sex as a basis for prohibited somewhat, up differs both end avenues (no so) why it did matter place: the same sex discrimination. may not have realized or understood the Indeed, full scope of the words it chose. 1 1964, years since Title VII has been understood cover far more than the critical, in It is the com applying of an simple decision to hire method, to parative be sure that A, a woman for Job or a man Job B. plaintiffs variable of the allowed to pro Court has held change. question The fundamental is not hibition sex discrimination reaches being whether a lesbian is better treated workplace, see harassment men, bisexuals, gay worse than Bank, Vinson, Meritor FSB v. Sav. transsexuals, comparison because such a U.S. many pieces Framing shifts too at once. (1986), including workplace same-sex question way critical swaps the harassment, Oncale; see sex) it reaches dis (here, characteristic for both the com assumptions crimination based actuarial comparator thus plainant and the ob person’s longevity, City about a see Los key point scures the the com —whether Angeles, Dep’t and Power v. Water played plainant’s protected characteristic Manhart, U.S. role in the decision. adverse (1978); L.Ed.2d and it discrim reaches The counterfactual we must is a situa use ination on a person’s based failure con man, Hively every tion in is a which but gender form to a certain set of stereo thing stays particular, else same: types, Hopkins. possible It quite see gender partner. the sex or may interpretations also have these if she been a alleges had surprised some who served the 88th (or living man married to woman with a Nevertheless, Congress. experience with woman) woman, dating every- a led the Supreme law has same, thing stayed Ivy Tech else had thé recognize examples that each of is a these promote would refused to her and not have covered form of sex discrimination. (We would not fired her. take the have her, facts in most light favorable B 12(b)(6) here on a because we are Rule dismissal; naturally say nothing offers in we will approaches two Ivy contesting from these support prevent of her contention that “sex dis Tech proceedings.) in later describes points crimination” includes discrimination on the This first To use paradigmatic basis of sexual orientation. The relies sex discrimination. Ulane, phrase Ivy is disad- comparative on the tried-and-true method from Tech woman. attempt signifi- vantaging which we to isolate the her because she is a alleged that Hopkins had Ivy- recognized that hints that complaint in the Nothing discriminating only that ex- was anti-marriage policy employer has an Tech or for relationships, in what the heterosexual who behaved tends to women policy anti-partnership matter even an a too “masculine” viewed as employer gender-neutral. that is jewelry, no fashion way makeup, no —no Hopkins, courts And even before sense.2 gender the lens of the through Viewed in situations had found sex cases, Hively repre- non-conformity line of stereotypical resisting where women were failure to con- ultimate case of sents the 1971, (at As far back as roles. least as stereotype form to the female permit does not held that such as modern Court place in a understood hire women with America, heterosexuality as to refuse to employer which views an sexuality children, men. Phil- and other forms but not the norm pre-school-age heterosexual. Our she is not exceptional): Corp., 400 U.S. v. Martin Marietta lips gender (1971). between a the line panel 496, described L.Ed.2d 613 nonconformity and one based on sex- claim time, held that the same this court Around gossamer-thin; we con- ual orientation as spectrum at the entire “strike[s] Title VII Hively’s not exist at all. clude that .does and women treatment of men disparate from the claims is no different claim stereotypes,” Sprogis v. resulting from sex rejected for who were brought by women Lines, Inc., 444 F.2d Air United workplaces, such traditionally male jobs in 1971), and struck down a construction, po- departments, as fire employees requiring only the female rule in those cases were licing. employers instances, unmarried. In both those to be jobs or of what policing the boundaries every affect employer’s rule did not for a they acceptable found behaviors so here: a in the workforce. Just woman man). (or cases, a for woman some on the basis of that discriminates policy every not affect orientation does point the critical This was man, woman, every but it is based on Hopkins. making was Supreme Court proper behavior assumptions about and the justices plurality in the The four given of a sex.3 The discriminato- judgment in the someone justices concurring two that, presented plurality the facts Hop- correctly points out that dissent 2. The case, plurality opinion, persuasion that fact is of was a but burden of should kins in this understanding what we are to no moment a to demonstrate shift to the plurality's of sex take from the discussion preponderance evidence that it would stereotyping. On the critical issue—whether concerning reached the same decision have Hopkins complained about which the conduct Hopkins’ candidacy absent consideration Ann support finding sex discrimination could gender.” Id. at 109 S.Ct. 1775. of her justices purposes Title VII—at least six Kennedy’s dissenting opinion did not Justice yes. agreement that the answer were point, he found to dwell on this need four-person opinion for the Brennan's Justice Hopkins prove could not causation. specific plurality context of was clear: “In stereotyping, employer who acts on the what questions in its conclusion 3. The dissent that a woman cannot be basis of belief jury ought hypothetical case in to do in be, has acted aggressive, or that she must not women Tech hired six heterosexual which gender.” 490 U.S. at on the basis of note, But, positions. we the full-time for White, concurring in the 1775. Justice S.Ct. clear that a Supreme Court has made it the agreed judgment, that he that an un- stated every policy affect woman to consti- need not factor in the lawful motive was a substantial Hively had What if tute sex discrimination. Hopkins suffered. employment action adverse heterosexual, too, job O’Connor, get the but did not been Justice Id. at 109 S.Ct. 1775. heels, high lipstick, wear judgment, “agree[d] she failed to concurring in because also the ry taking not behavior does exist without (either biological

the victim’s as ob- earlier, we noted As also modified, served at birth or as in the case has argued action on based sexual transsexuals) of into account. Any discom- orientation is sex discrimination under the fort, job or on disapproval, decision based theory. associational It is now accepted that a person who is complainant against the fact that the discriminated —woman protected because the of characteristic of differently, speaks man —dresses different- one whom with she is actually associates ly, or dates or marries same-sex partner, being disadvantaged of because her own is purely simply a reaction on based This line traits. of cases began Lov sex. That that it means falls within Title ing, Supreme in which Court held that prohibition against VII’s sex discrimina- “restricting marry the freedom to solely tion, if it of the affects one racial because of classifications violates the specified ways. central Equal of the Protection Clause.” 388 U.S. at 1817. S.Ct. looking The virtue of at comparators rejected argument that miscege paying gender non-conformity heed equal nation statutes do not protec violate is that on process light this sheds they “punish tion equally both the interpretive Hively’s question by raised the Negro participants white and in an ease: is sexual-orientation discrimination marriage.” interracial Id. at discrimination, form given way of sex dealing 1817. with a When statute contain interpret- which the Court has classifications, wrote, ing racial it “the fact ed the word “sex” the statute? The equal application of does not immunize the dissent us for not to rule trying criticizes heavy from the very statute burden of by out sexual-orientation discrimination justification” required by the Fourteenth controlling for our exam- comparator it Amendment lines drawn race. Id. at ple on placing any weight and for not 9, 87 fact that if Tech someone had asked effect, parties In both to the interracial what its were at the reasons time being important were marriage denied conduct, discriminatory probably it would rights by solely the basis state on of orientation,” have said “sexual “sex.” point by their race. This now has been true, We assume this is but recognized many years. For example, thought experiment does not answer Woodmen Parr v. the World Ins. Life question instead, begs before us— Co., 1986), 791 F.2d 888 question. logical fallacy It commits the Circuit a case in Eleventh considered assuming the conclusion it out sets (Parr) which a man married to an white prove. It makes no sense to for or control African-American woman denied em- rule out discrimination on the basis ployment company an insurance be- if question orientation before us marriage. interracial He cause of his sued type whether that VII, under Title but the district court dis- nothing more or less than a form of sex complaint ground that it missed the on the Repeating discrimination. that the two on failed to describe discrimination different, as dissent does at numerous appeals race. The court re- basis of points, analysis. plaintiff not advance the versed. It “[w]here also does held perfume A like the other fail- not mean that an has not discrimi- candidates? against

ure to all does one woman the basis of sex. discriminate women nated subjected working a hostile envi- being inter- upon based an discrimination claims association, discharged be- alleges, ultimately he ronment marriage racial African- definition, has been discrimi- of their association with that he cause race.” Id. at defen- of his co-workers. Because the against nated because American rejected employer’s bring some- can employee It also dant conceded that an 892. that, alle- argument given the claim bizarre an race discrimination what associational against all Af- VII, say that it discriminated gation Title we had no need to under rican-Americans, not show that Instead, Parr could we assumed point. much on that if he also have made a difference it would that an associa- argument for the sake of The court African-American. Id. had been possible, discrimination claim is tional race describing that as a itself with contented are whether the key inquiries and that the day. for another lawsuit employee experienced has be- that discrimination was whether posi- took the same The Second Circuit at 884. This is consistent cause of race. Id. v. Iona later Holcomb tion two decades with Holcomb. (2d 2008), Coll., in which 521 F.3d 130 Cir. college employee former a white analy- accept fact that we now The sued, job him that it fired from his alleging however, nothing, us about the sis tells basketball coach of the men’s as associate Loving world in when reached the Afri- was married to an team because he implies The dissent Supreme Court. held “that woman. The court can-American adopting an anachronistic view we are if it employer may violate Title VII an VII, just years enacted three before employee an because takes action Loving, but is the dissent’s understand- person employee’s of the association with laws ing Loving miscegenation and the race.” Id. at 132. It stressed of another Loving Thanks to that is an anachronism. plaintiffs depend case did not mentioned, society and the later cases we held, contrary, it third-party injury. To the (and now that such laws are understands subjected to ad- employee “where an were) always inherently racist. But as employer disap-

verse action because (and 1964),Virginia and 15 thus as of association, of interracial the em- proves laws anti-miscegenation other states had because of ployee suffers discrimination Loving, on the books. own race.” Id. at 139. Had employee’s long 1817. These laws were defended African-American, the plaintiff been non-discriminatory be- and understood as taint- question whether race discrimination legal part- affected both cause the obstacle employer’s action would have de- ed recognized Loving ners. The Court pended on different facts. equal application prohibited of a law that exactly conduct between members of differ- have not faced same We Holcomb, Changing it. that in Parr and but ent races did not save situation as partner of one made a difference have come close. In Drake v. Minn. race we conduct, Co., determining legality Mining Mfg. & 134 F.3d 878 1998), rested on “distinctions we encountered a case which and so law race,” according which were un- employees brought an action under drawn white discriminatory.4 they justifiable racially theory on the were Title VII imply extension that sexual orientation discrimina seems to that the discrim dissent problem it is not de Loving problematic because tion is not a ination in supremacy miscegenation designed signed to maintain the of one sex. laws were certainly repugnant fea supremacy But while this was maintain the of one race—and

349 11, at Loving, 388 87 S.Ct. 1817. So would be suffering U.S. not the adverse action too, sex, to sex of change race, color, here. If we were the had his or her national partner relationship, one lesbian the origin, religion or been different.

outcome would different. This reveals

that the discrimination rests on distinc- Ill according tions drawn to sex. Today’s decision must be understood com- dissent would instead have us backdrop the of the Supreme pare the of men who attract- treatment decisions, Court’s in the field of ed the to members of male sex with the discrimination, employment also in but the treatment of who to women are attracted area of broader discrimination the basis sex, members of female and ask the already of sexual orientation. We have dis employer whether an treats the men dif- cases, cussed the especially ferently setting from the women. But even Hopkins and Oncale. The latter line of involved, logical to fallacy one side the Evans, began cases with Romer v. 517 this In Loving why shows fails. the context 620, 1620, U.S. 116 S.Ct. 134 L.Ed.2d 855 relationships, just of interracial we could (1996), in which the Court held that a easily as as hold constant variable such of provision the Colorado for Constitution persons “sexual or romantic attraction to any organ bidding government in the of a an different race” and ask whether taking designed state pro from action persons of treated different “homosexual, lesbian, tect per or bisexual” races that the propensity who shared sons, 624, 116 id. at S.Ct. violated the same. That Lov- precisely the rule that Equal federal Protection Clause. Romer rejected, we, so ing and too must in the Texas, v. was followed Lawrence 539 context of sexual associations. U.S. 123 S.Ct. Parr, Loving, (2003),

The fact Hol- and in which the Court found that a associations, op- comb deal with racial Texas statute in criminalizing homosexual posed color, timacy consenting to those based on national adults between violated sex, origin, liberty provision religion, or is of no moment. the of the Due Process The text of the statute draws no distinc- Clause. Next came United States Wind — tion, sor, -, purpose, among the different U.S. 186 (2013), varieties of discrimination addresses —a L.Ed.2d 808 which addressed the recognized Hopkins constitutionality fact the plurality. part the Defense (DOMA) n.9, Marriage See 490 at 244 109 1775. of Act that excluded a U.S. partner This means that to the extent the same-sex from the definition of prohibits “spouse” statute on the ba- other federal statutes. The part sis of the race of someone with that this DOMA “vio whom Court held associates, it plaintiff prohibits process equal protec also dis- basic due late[d] applicable crimination on the basis of the national tion to the Federal principles (as color, origin, Finally, religion, or the Government.” Id. at 2693. here) supra, relevant sex of in Obergefell, the associate. No Court’s decision held involved, category right marry matter which es- is a fundamental Due plaintiff liberty right, protected by sence of claim is that Process law, protect Virginia’s purpose the 'in ture of it was not the even-handed state basis Rather, holding Loving. tegrity' Loving, all races.” U.S. found the odds n.11, racial classifications to be at 87 S.Ct. 1817. Constitution, assuming with the "even (C.D. Univ., perdine F.Supp.3d Protection Clauses of the Four- Equal 2015) (Title case, applying 135 S.Ct. at 2604. The Cal. IX teenth Amendment. Baldwin). Many principles is now clear that the VII other “[i]t Court wrote liberty gender-identity of courts found that challenged laws burden have See, it claims are couples, cognizable and must be further under VII. same-sex they e.g., Co., Rosa Bank Tr. acknowledged abridge that central v. Park W. & 214 (1st 2000) (claim 213, Id. F.3d precepts equality.” of 215-16 Cir. Equal Op discrimination under Credit require considerable calisthen It would Act, VII); portunity analogizing to Title from to remove the “sex” “sexual orien ics 1187, Hartford, v. 204 Schwenk F.3d 1201- to do tation.” The effort so has led (9th 2000) (relying 02 on Title Cir. results, contradictory our confusing and as cases to that violence conclude panel The opinion illustrated so well.5 gender transsexual violence because of concluded, decision, in its EEOC Baldwin Act); under Motivated Violence Gender an effort cannot be reconciled such Cincinnati, v. 401 City Barnes F.3d 729 of straightforward language with the of Title (6th Salem, 2005); City Cir. Smith v. of Many courts have to the VII. district come (6th Ohio, 2004); 378 F.3d 566 Fabian See, e.g., conclusion. Boutillier v. same Conn., F.Supp.3d v. 172 Cent. 509 Hosp. of Sch., No. Pub. 3:13-CV-01303- Hartford (D. 2016); Billington, Conn. v. Schroer 577 WWE, 255, F.Supp.3d 221 2016 WL 2008). (D.D.C. 293, F.Supp.2d 308 (D. 17, 2016); Nov. 6818348 Conn. U.S. Opportunity authority This is Equal Emp’t say Comm’n v. not to to the Ctr., P.C., 16-225, contrary No. Scott Med. 217 does not exist. As we CV acknowl- (W.D. 834, 2016 F.Supp.3d edged opinion, WL 6569233 outset of this it does. 4, 2016); Lafayette Pa. Winstead v. But this sits en banc to Nov. court consider Comm’rs, Cnty. Cnty. Bd. 197 what the is now in light correct rule of law of (N.D. 2016); Fla. F.Supp.3d Supreme 1334 Isaacs v. of the authoritative Court’s inter- Servs., LLC, pretations, 1190 F.Supp.3d thought Felder not what someone (M.D. 2015); one, ten, Pep twenty years ago.6 Ala. see also v. meant Videckis speaker person The dissent contends that that a in 1964 fluent reasonable could have English language of the understand based on would understood discrimination sex to concept that "sex” does not include the of include sexual orientation But discrimination. orientation,” similarly may ought person and this "sexual to dem reasonable not have easily distinguish that the two are understood it to include sexual harassment onstrate (and, extension, again But not male-on-male able and not the same. assumes this said, harassment). we are question As Oncale con the answer to the us: how to before law, provisions interpret light guidance cerned with the of the the statute in principal Supreme provided. of those who wrote Court has concerns it. 523 The dissent 80, approach U.S. at 118 S.Ct. 998. The we is correct that the term "sexual orientation” just have taken does that. dictionary was not defined in the around enactment, Title VII’s time of but neither was concept approach, the term "sexual 6. The harassment” —a dissent criticizes us for this that, although distinguished nothing surprising it can be from but we in the find fact that "sex,” may wrong many has at least since 1986 been included lower have been courts Supreme years they Court under rule the umbrella of how understood the of law supplied by sex discrimination. See a statute or Constitution. Ex- New Colle Webster’s (7th 1963) (lacking giate Dictionary actly ed. happened example, before. For has Denver, entry for "sexual harassment” v. or "sexual or in Central Bank N.A. First Inter- ientation”); Denver, N.A., Heritage state U.S. Bank Dictionary The American (1st 1969) (same). (1994), English Language ed. 128 L.Ed.2d 119 the Su- of the postulates implausible preme disapproved The dissent that it a rule of decisions, logic now.”). Court’s time to resolve the than issue reality well as the common-sense that it is There was no waiver. As for sovereign actually impossible to discriminate on the immunity, Ivy Tech acknowledges that basis of sexual orientation without discrim- federal courts have long concluded that sex, inating persuade on the basis of us Congress validly abrogated the state’s im the time come to overrule our has munity respect to intentional discrimi previous cases that have endeavored to nation claims under Title Fitzpatrick VII. find and obsérve that line. Bitzer, 445, 456, (1976); Nanda v. Bd. of For comprehensive the sake of Ill., Trs. Univ. 303 F.3d ness, presents we note that Tech two 2002). Cir. There is no merit whatsoever to why technical reasons it thinks this case point. that should not be heard: waiver sovereign and We close noting that we have decided immunity. Neither persuades one us. only put the issue se) us. before Additional Though Hively (acting pro did not ad complications can be saved for another arguments vance the same to the district day, they when actually are court, involved in the that court would power have been Ivy contend, case. Tech did not for We, less to exam- precedent. overturn in con ple, that trast, religious it was a basis, institution proceeding on a de novo and positions it denied to and we have the discretion related to to address is religious a for the mission.7 appeal. sues first time on Kaczma See U.S.C. 2000e-l(a). (7th § Rednour, 586, any rek v. 627 F.3d Nor have we Cir. had occa- 2010). sion to We often exercise that discretion to consider the of discrimina- arguments entertain that tion in the pure provision turn on is context of the of social See, e.g., public sues of law. Amcast or Corp. only Indus. services. We hold that a 746, Corp., v. Detrex 2 F.3d person alleges who that experienced she 1993) (concluding will be no better “[t]here discrimination on the basis of candidates, interpretation regional any all respon- that eleven courts laws and other is the appeals sibility Supreme had followed—most for over three Court. See State Oil Khan, 3, 20, 275, Taniguchi decades. When the Court decided Co. v. 522 U.S. 118 S.Ct. Ltd., 560, (1997) Saipan, (recognizing

v. Kan 139 L.Ed.2d 199 566 U.S. Pacific 1997, (2012) Supreme (deciding jettison per 182 L.Ed.2d 903 could se pricefixing). provision compensating interpret- rule maximum All we for can 1920(6) apply § do is what we have done ers in 28 U.S.C. here: does not include translation), rejected relevant Court decisions to the stat- costs for document ability. ute to the best of our regard views of at least six to the circuits proper reading of the statute. 566 U.S. at J., Indeed, (Ginsburg, dissenting). 132 S.Ct. 1997 See in contrast to cases in which a Dep’t Navy, religious employer may exempted also Milner v. from (2011) liability they Title VII have a bona J., (Breyer, dissenting) (noting that fide to discriminate on the basis a need characteristic, rejected interpretation protected Court’s decision we note that Exemption position 2 to the any Freedom of Information Tech's does not seem to reflect consistently permitted Act that had been followed engage fundamental desire to be to favorably by every appeals cited court of in discrimination basis of sexual orien- 30-year contrary, Ivy have considered the matter tation. To the Tech maintains over period). It policy prohibiting would be more controversial that it has its own internal repeal poli- assert that this is one of the rare statutes left such It discrimination. could however, tomorrow, development, cy for common-law as our concur- we will so riot event, ring colleague any Hively’s In does. that com- look behind its decision to contest development, mon-law both for the antitrust claim. a fit.” down in the street with forth a case son fell put has orientation her sexual pur- injured person (Bleeding for Title VII a sick of sex wrong to dismiss treatment It therefore form of medical poses. was common failure to state not, Hively’s complaint thought re- days.) Blackstone those court is of the district judgment claim. The and conse- marking that as to “the effects Remanded the case is spirit and reason of the law Reversed quence, or proceedings. further is, words bear either ... the rule where none, if very signification, or a absurd POSNER, concurring. Judge, Circuit understood, literally we must a little devi- reverse, I that we should agree I of them.” Id. ate from the received sense I wish to majority opinion, but join the surgeons, The law didn’t mention *59-60. may approach that an alternative explore thought it obvious that the but Blackstone straightforward. be more some- who must have known legislators, of sur- thing about the medical activities at the outset to note helpful It is comes in the law to geons, apply of statutes had not intended interpretation conven- The first and most three flavors. And so it is with ambulances them. original of the the extraction tional is prohibit vehicles. parks in- meaning meaning of the statute —the controversially, inter- Finally and most corre- legislators the tended —and meaning a fresh pretation giving can mean ordinary dis- sponds interpretation (which can be a statement to a statement usually I Knowing English can course. in a constitutional or found straightforwardly swiftly and determine text) meaning that infuses the state- —a statement, oral or writ- of a today. vitality significance with ment (not always, ten, English me in made to example interpreta- An of this last form of may garbled, statement because the my that in mind is most tion—the form inaccurate, ob- intricate or grammatically case—is clearly applicable present to the tuse, ability to un- beyond my complex Act, Antitrust enacted the Sherman derstand). sophisticated there was a long before illus- interpretation, The second form of monop- understanding of the economics of local ordinance commonplace trated competition. changed; Times have oly and park,” “no in the which commands vehicles thirty years than the Act has and for more intent, interpretation by unexpressed conformity mod- interpreted in to the been although an whereby we understand that ern, nineteenth-century, under- vehicle, was ambulance is a the ordinance standing of the relevant economics. The among to include ambulances not intended updated by, or in the Act has thus been park. “vehicles” forbidden to enter of, judicial form interpretation name interpretation received its —the This mode of interpretation making that consists of analy- statement Blackstone’s definitive and under- satisfy old law modern needs Bologna which sis of the medieval law a form of inter- standings. And common blood in the stated that “whoever drew is, despite flouting “original it its pretation the utmost punished streets should be meaning.” pro- and constitutional Statutes Blackstone, Commen- severity.” William on the (1765). frequently interpreted are visions England *60 taries on the Laws of under- present present basis of need and the law should Blackstone asked whether original meaning— rather than standing punishable to make interpreted have been fre- provisions even more per- the vein of a constitutional surgeon opened a “who most of in it quently, because them older the word “sex” now connotes both gender than most statutes. and sexual orientation. Rights the Civil Act of VII of It is certain well-nigh that homosexuali- old, half century

now more than a invites ty, female, male or figure did not that will it to interpretation update the minds of legislators who enacted Title present, present markedly that differs graduated VIL I had from law school two which was from the era in the Act enacted. years before the law was enacted. IHad emphasize But I need to third been asked then whether I ever met a had judicial form of it in- interpretation homosexual, I male would have answered: —call terpretive updating presupposes not; I been probably had asked whether I — lengthy interval between enactment and had I ever met a lesbian would have an- A when (re)interpretation. passed statute “only pages swered in the of A la re- meaning; years, has an it takes understood perdu.” cherche du temps Homosexuality many years, political often for a shift in the almost invisible the 1960s. It be- change and cultural environment consequence came visible in the 1980s as a understanding the statute. today regarded of the AIDS epidemic; by large popula- swathe American Hively, claims that because plaintiff, tion as But what normal. is certain is that her employer she’s a lesbian declined to the word “sex” in Title no immedi- VII had promote employ- either her to full-time homosexuality; many ate reference part-time employment ment or renew years elapse would before it could be un- contract. She seeks redress on basis of homosexuality. derstood to include provision Title VII that forbids an hire[,] employer “to fail or refuse to or to “originalist” argue A diehard would individual, discharge[,] any or otherwise to what was believed in 1964 defines the against any discriminate individual scope long of the statute for as as the terms, respect compensation, to his condi- unchanged, text remains tions, privileges employment, or changed by Congress’s therefore until ... 42 of such individual’s sex....” U.S.C. amending replacing the statute. But as 2000e-2(a)(l). § earlier, statutory I noted and constitution provisions frequently interpreted that a woman on are on argument firing The al being present account of a does not the basis of need and understand lesbian ing original meaning. in Think violate Title is that the term “sex” rather than VII 1964, statute, un- decisive example when enacted in of Justice Scalia’s woman,” burning “man the Ameri doubtedly meant and so fifth vote to hold protected thought flag political protest at the can as a is people time would have being a woman was a clause of the First free-speech who fired lesbian Amendment, your being provided flag was not fired for a woman it’s being employer have fired and is not burned in circumstances unless her would not grounds might spread. on a man he which the fire Texas v. homosexuality Johnson, 397, 2533, homosexual; 105 knew to for in that event 491 109 S.Ct. U.S. (1989); v. Eich between the two would L.Ed.2d 342 United States difference man, gender be the the one he fired. Title VII (1990). Burning flag a is not

does not mention discrimination on the L.Ed.2d 287 orientation, speech in there is no basis of sexual and so an ex- the usual sense and years ratifiers of for how 53 later indication that the framers or planation needed changed thought has the First Amendment statute in the Constitution. em- words to be found in the amendment “speech” word it is forbid- only question is whether burning or other nonverbal flag braced radiation from the den some invisible communicating. methods Tenth Amendment. general terms of the Supreme Court’s hold- consider the Or country what this has We must consider requires Fourth Amendment ing that the deciding what that amend- become in precondition a as a the issuance of warrant added). (emphasis ment has reserved arresting home or searching person’s a States, v. E.g., by substituting him there. Johnson United for “that So 10, 13-14, 68 S.Ct. 92 L.Ed. opinion, in Holmes’s discrimi- U.S. amendment” (1948). nothing in the amend- grounds There is nation on of “sex” Title VII broader, All requiring new, a warrant ever. today meaning. ment about receives says about warrants changed that the amendment more in the decades Nothing has warrants, general and warrants than is that since the enactment of the statute probable or issued without than vague that are attitudes toward sex. 1964 was more cause, Supreme invalid. In effect the are Richard Raskind under- a decade before Amendment, reassignment rewrote the Fourth sur- went male-to-female sex Richards, First Amendment just as it rewrote the name Renée gery and took the cases, just as it re- flag-burning transgender celebrity; becoming the first Act, today just as transgender persons wrote the Sherman are now of course Black- rewriting Title VII. We are we are common. stone’s heirs. (and 2000s), and In 1964 indeed until the

(cid:127) more: think of how the And there is in some states until the Court’s — punishments” “cruel and unusual has term Obergefell Hodges, U.S. decision morphed over time. Or how Second -,

Amendment, originally conceived which (2015), marry not allowed to men were arming mem- and enacted was about other, marry nor women allowed to each (now the National bers of the state militias days each other. If those Guard), today interpreted gun to confer lesbi- fired a lesbian because he didn’t like citizens as well. Over and rights private ans, that he he would have said statutes, old constitutional again, over old firing her because she was woman—he meaning, as ex- provisions, given new would not have fired her had she been Holmes in plained eloquently so Justice heterosexual —and so he was not discrimi- Holland, 416, 433-34, 252 Missouri v. U.S. nating on the basis of sex as understood (1920): 40 64 L.Ed. 641 S.Ct. ratifiers of Title VII. But the authors and today that “sex” a broader than dealing we are with words has When act, In genitalia you’re like born with. Baskin also are a constituent the Con- 2014), States, our Bogan, we must v. 766 F.3d 648 stitution of the United court, Obergefell by invalidat- they anticipating that have called into life a realize ing in Indiana and Wisconsin that being development of which could laws completely by marriage, forbade same-sex discussed not have been foreseen is length The whether homosexual orientation gifted begetters.... the most of its chosen, in the innate or and found that the scien- case before us must be considered propo- strongly supports and not tific literature light experience of our whole innate, not a biological in a hun- sition that it is and merely that of what was said deciding how to dress. The years ago. treaty question The in choice like dred against any prohibitory position of a woman discriminated does not contravene of is thus analo- tition and would being monopoly on account a lesbian make the Sher- man Act being to a anachronistic. gous woman’s discriminated being on account of a woman. That We now that understand homosexual woman; didn’t a woman choose be (and men and bisexuals, women also de- didn’t be a lesbian. I lesbian choose to fined as having both homosexual and het- why firing see don’t lesbian she orientations) erosexual are normal in the subset of who are is women lesbian ways count, beyond and that have be a form thought any should less of sex many made outstanding intellectual and firing a discrimination than woman be- (think cultural contributions to society cause she’s woman. Wilde, example Tchaikovsky, of Oscar Addams, Gide, Mann, Jane André Thomas it has taken courts But our and our Dietrich, Bayard Rustin, Marlene Alan society a considerable while realize that Guinness, Bernstein, Turing, Alec Leonard harassment, perva- which has been Cliburn, very Van and James Baldwin—a many workplaces (including many sive list). partial We now understand that ho- and, notoriously, Hill Capitol offices Fox mosexuals, female, male play an essen- News, institutions), among many other is a role, country rate, tial at any of sex It form discrimination. has taken a adopters of from children foster homes—a longer for realization to little dawn point emphasized in our Baskin decision. discrimination based on a woman’s failure compelling in protect- social interest stereotypical gender to fulfill roles is also a (male female) ing homosexuals from of sex form discrimination. And has tak- justifies discrimination an admittedly loose longer, with a volume of en still substantial “interpretation” word of the “sex” in Title failing to struggling cases maintain a homosexuality: VII to embrace an inter- defensible line between sex dis- plausible, pretation imputed cannot to the crimination and sexual-orientation discrim- but framers the statute that we are ination, homosexuality to realize that is (to light adopt quote entitled to nothing failing worse than to fulfill stereo- Holmes) become,” country “what this has gender typical roles. or, terminology, in Blackstonian to em- as a deviation from lit- brace sensible if today true that even asked what It’s original meaning eral or plaintiff Hively one an- the sex would language. or that swer she is female she is a woman, not that she is a lesbian. Lesbian- I am reluctant however base the new interpretation ism denotes form of sexual romantic account attraction; physical it is not a sex identifier sex in such Title VII on cases as Oncale Services, Inc., masculinity femininity. A Sundowner like broader Offshore understanding U.S. of the word “sex” L.Ed.2d (1998), a original understanding case of sexual harassment of one VII than thus by men, by held in man other classify order to required be able prohibition Court to Title VII’s of violate Hively complains discrimination of which opinion discrimination. The Court’s is sex as a form of sex discrimination. That its quote rather evasive. I critical lan- understanding essential. broader is Failure guage: adopt it would make the statute ana- chronistic, just observed, interpreting the Sher- As some have male- courts byAct man reference to its nineteenth- on-male sexual in the work- harassment century assuredly understanding place was not the compe- principal framers’ of (1967), Hively L.Ed.2d 1010 which concerned with when Congress

evil was statutory prohi- right But to associate inti- argues protects Title it enacted VII. evil beyond principal of the same sex. That go mately person often bitions evils, comparable case, reasonably on race. It to cover a constitutional based provisions of our ultimately it is of interracial prohibitions outlawed state concerns principal than the rather laws with the marriage. nothing It had to do by gov- which we are legislators of our recently enacted Title VII. prohibits “discrimi- erned. Title VII majority opinion present case ... of ... sex” because nation] “Ivy disadvantaging Tech is states employment. of “terms” or “conditions” woman,” [Hively] is a not a because she includes holding that this Our man, to have romantic attach- who wants must extend to sexual harassment (emphasis in partners ments with female any kind that meets the harassment of words, Ivy In Tech is di- original). other statutory requirements. sadvantaging her because she is woman 79-80, 118 Id. at conforming to its notions of who is not quotation in the the statement Consider proper type behavior. That’s a different go often be- “statutory prohibitions from the classic cases of sex discrimination reasonably to cover yond principal evil erroneously old in which women were evils, ultimately comparable (sometimes maliciously) unquali- deemed than the

provisions our laws rather jobs. fied for certain That was the basis on by legislators concerns of our principal example, for dis- departments, which fire added). governed” (emphasis which we are example of against criminated women—an thought “originalism,” if That could be by the lan- plainly forbidden statutory language. “provisions” is meant guage of Title VII. the statement in Oncale that Consider too ... prohibits ‘discrimination] “Title VII straightforward The most tenable and of ... sex’ in the ‘terms’ or ‘condi- because ground deciding in favor of employment. holding Our that this tions’ in 1964 sex discrimination while must extend to includes sexual harassment against men or wom- meant discrimination any kind that meets sexual harassment of of men against en as such and not subsets statutory requirements.” Although “of men or or women such as effeminate breadth, any signals kind” it is narrowed women, concept of sex dis- mannish that follows: “that meets the the clause light crimination has since broadened statutory requirements.” So we’re back barely which existed in recognition, case, the essential issue which is significant that there are numbers of time passage whether and concomitant men and women who have a sexual both homosexuality in attitudes toward change apart that sets them from the orientation unconventional forms of sexual and other genetic their sex heterosexual members of justify interpreta- orientation can a fresh (male female), they con- and that while ... phrase tion of the “discriminat[ion] minority stitute a their sexual orientation VII, of ... sex” in Title which threaten our soci- is not evil and does not half-century-old fortunately however is forbids ety. Title VII terms reinterpretation. ripe statute discrimination, understand dis- but we now men and crimination homosexual in as- Another decision we should avoid discrimination; be a form of sex is women to cribing present meaning to Holmes, con- paraphrase and to “We must Loving Virginia, country FLAUM, Judge, joined sider what has become in Circuit RIPPLE, Judge, Circuit deciding concurring. what that has reserved.” [statute] join I Parts I and II of the majority majority opinion states that Con- opinion agree that Title VII of the gress “may have realized or not. Rights Civil Act of 42 U.S.C. the full scope understood of the words it 2000e-2(a), § preclude does not Professor chose.” This could to imply be understood Hively’s claim Ivy that Tech Community the statute forbade discrimination College engaged in employment unlawful against homosexuals but the framers and I discrimination. find the issue before us is of ratifiers the statute were not smart simply discriminating against whether an enough to that. I prefer realize would to employee for being homosexual violates say that theirs un- then-current prohibition against Title VII’s discriminat- derstanding key word—sex. “Sex” ing against employee because of their gender, 1964 meant not sexual orientation. view, In my yes, sex. the answer is and the What the framers and ratifiers under- statute’s text commands as much. standably didn’t understand was atti- how lesbian, Kimberly Hively, openly who is change tudes toward homosexuals would taught adjunct as a part-time, professor at following century. They half shouldn’t Ivy Community Tech College. Over the foresight. blamed for that failure of We tenure, course of Hively ap- her Professor understand the words of Title VII differ- plied positions for fulltime with the Col- ently not because smarter than the we’re lege, rejected and it each of applica- statute’s framers and ratifiers but because the College tions. After did not renew her contract, era, Professor pro we live in a different cul- filed a se different charge Equal Employment with the Op- Congress ture. in the 1960s not foresee did Commission, portunity alleging Ivy sexual revolution the 2000s. What promote Tech’s refusal to her constituted our City court announced Doe v. discrimination “based on sexual or- [her] Belleville, 119 F.3d ientation.” Tech having denied en- 1997), Congress is what had declared in ” gaged any discrimination and moved to 1964: “the traditional notion of ‘sex.’ Hively’s complaint dismiss Professor prefer acknowledge I would see us failing to state a claim on which relief we, openly today judges who are rath- granted. Throughout could be the course I litigation, than of this understand the control- Congress, impos- er members are ling question to have been the same: Does ing half-century-old on a statute Hively’s discrimination based on Professor Congress “sex discrimination” that orientation” constitute “sexual discrimina- accepted. that enacted it would not have tion based on her “sex”? Under Title VII’s something fairly fre- This is courts do text, it does. quently to avoid obsolescence provides: Title VII concomitantly placing to avoid the en- of updating tire burden old statutes on the It shall be an unlawful legislative practice employer— branch. should not leave the We impression merely that we are the obedi- (1) to fail or refuse to hire or to dis- (1963- Congress ent servants of the 88th individual, charge any or otherwise 1965), carrying out their wishes. We are against any individu- discriminate taking advantage not. of what the respect compensation, We al to his terms, conditions, century taught. privileges last half has to, by tendency characterized to direct because of such individ- employment, desire toward another of the same ... ual’s sex[.] added) (last sex”) (emphasis April visited 2000e-2(a)(l). § prove To 42 U.S.C. 4, 2017); Homosexual, also see Black’s case, employee an “must show Dictionary (10th 2014) (“Of relat- ed. Law in actually gender1 relied on her employer to, ing or characterized sexual desire Price making its decision.” Waterhouse sex.”) person (emphasis for a of the same 251, 109 Hopkins, U.S. English added); Homosexual, Oxford Dic- (1989). tionary 1964) (“Having a sexual ed. true, as Assuming pled the facts as sex”) persons of own propensity for one’s stage litigation, Ivy we must at this added). One cannot consider a (emphasis Professor promote Tech refused to homosexuality also ac- person’s without she is homosexual. Professor because counting doing sex: would ren- their so that, so, doing in Hively argues the Col- meaningless. and As der “same” “own” sex, because, but for her lege relied on her such, discriminating against employee sex, would not have been denied a she they constitutes because are homosexual (i.e., not have been promotion she would discriminating against employee an be- if she were a man who promotion denied a (A) (B) sex, employee’s cause of women). sexually attracted to She also their sexual attraction to individuals of the argues that Tech’s actions constituted “sex,” VII, under Title is an same sex. And College discrimination: The associational enumerated trait. Hively’s intimate took issue with Professor question: This raises the Does Title association with women and refused to require plaintiff text to show that VII’s allegation, her. There is no how- promote against an discriminated them ever, College promote refused to solely “because of’ an enumerated trait? women; that it allegation nor is there an text, clearly I Again, turn to the which promote refused to those who associate states: Rather, Ivy alleged women. Tech’s provided in this Except as otherwise against Hively’s Professor sex- animus was subehapter, an unlawful ual orientation —a combination of these practice is established when the com- College argues factors—which the two plaining party demonstrates that ... sex in not a trait enumerated Title VII. motivating any ... was a factor for Setting aside the treatment the ma- employment practice, though even other jority dissenting practice. of sexual also motivated the opinions factors freestanding concept, orientation as a I 2000e-2(m) added). § (emphasis 42 U.S.C. employ- conclude discrimination Congress added this amendment to Title homosexuality on the of their ee basis partially response Supreme to the necessarily, part, discrimination based plurality Hopkins, Court’s decision on their sex. Fundamental to the definition which the Court stated: homosexuality is the sexual attraction to we know the words “be- [S]ince of the “same sex.” Homosexu- individuals “solely cause of’ do not mean Dictionary al, of,” Online, we also know Title VII meant Merriam-Webster https://www.merriam-webster. available at to condemn even those decisions based (“[0]f, com/dictionary/homosexual relating legitimate illegiti- on a mixture of notes, legal majority inquire they are the same for 1. As the whether "gender” syn- has often treated and "sex” as purposes in this case. onymous. agree I that there is no need to When, therefore, agree majority with the that the Second mate considerations. analysis in employer gender an considers both and Circuit’s Holcomb v. Iona Col- (2d 2008), making lege, the F.3d legitimate persua- factors at time of 521 130 is decision, There, “because a decision was sive. the court concluded that the other, legitimate consid- college firing of’ sex and had violated Title a VII after .... need not leave our erations We white basketball coach because of his mar- doorstep sense at the when we common riage to a black woman. The court ex- a statute. It is difficult for us interpret plainéd, employee subjected an “[W]here is that, imagine simple to in the words to adverse action because employer an dis- of,” Congress meant to “because obli- association, approves of interracial the em- plaintiff identify precise a gate ployee suffers discrimination because of by legitimate role and ille- played causal employee’s own race.” at Id. 139. This employment in the gitimate motivations comports text. with Title VII’s Interracial conclude, challenges. (A) decision she We relationships comprised an indi- instead, Congress obligate (B) meant to race, vidual of one another individ- prove relied her to ual of a race. considering Without different upon coming sex-based considerations race, the first the word “differ- individual’s to its decision. meaningless. Consequently, ent” is em- ployment discrimination based on an em- (foot- 241-242, at 109 S.Ct. 1775 U.S. is, interracial ployee’s relationship part, omitted). note The Court made clear employee’s tied to an enumerated trait: the ... inquiry gen- critical is whether “[t]he type prohib- race. This of discrimination is a in the deci- der was factor ited Title VII. 241, at sion” when it was made. Id. added). (emphasis So if discrim- principle applies The same here. inating against employee an because she is allegedly promote Tech refused to Profes- discriminating equivalent homosexual is sor because she was homosexual— (A) against her because she is a woman (A) (B) sexually attract- a woman who is (B) women, sexually attracted to who is Thus, College allegedly ed to women. motivated, part, by then it an enumer- Hively, against discriminated Professor employee’s trait: sex. That is all ated of her sex. I conclude part, least successfully employee an must show to VII, provides, that Title as its text does claim.2 allege a Title VII not allow this. analyzing employment Cases actions SYKES, Judge, Circuit with whom relationships provide

based on interracial KANNE, Judges, Circuit BAUER Although apt an illustration. this Circuit join, dissenting. yet whether claims has addressed full is im- theory Any a case heard court based on associational discrimi- VII, All one is momentous. cognizable portant. nation are under Title I This against any foregoing analysis 'to discriminate individual 2. The should obtain even if lawful employer allegedly against sex[.]' individual’s ... discriminates ..: because of such case, employees. The focus on the individual is unam- all homosexual In that statute’s § employer’s biguous.” (quoting 42 U.S.C. 2000e- discrimination across sexes does irrelevant, 2(a)(1))). confronting that are but When claims not demonstrate that sex sex, inherently part such as dis- plausible that each individual a based in rather has homosexuals, City each em- claim. crimination sex-based discrimination See face, ployee's Title VII on its no Angeles,Dep’t Water and Power v. Man claim satisfies Los hart, any employee who other 98 S.Ct. matter (1978) ("[Title experienced un- discrimination. VII] L.Ed.2d 657 makes it 95-97, 101 S.Ct. pay careful attention to more reason (1981); n.42, id. at 98 question role. The limits on the court’s So is one of statuto- only; the en banc court lack interpretive before our role is we majority deploys ry interpretation. discretion to ascribe to Title VII mean- common-law decision judge-empowering, Sitting ing inception. it did not bear at its great deal of room method that leaves our permits en banc us to overturn own judicial Judge So does Pos- discretion. case, in a we do precedents, but is faithful ner in his concurrence. Neither court free to not sit as a common-law text, fairly, as a statutory the read to engage “judicial interpretive updating,” would have understood person reasonable it,1 Judge Posner calls or to do the same as The result is a adopted. it when it was thing by tenuously hard on relat- pressing statutory courtesy amendment of unelect- majori- as the Supreme opinions, ed Court this; admits he judges. Judge ed Posner ty does. conception for this of argues embraces and statutory updating, whether Judicial not, judicial power. majority pre- does covert, cannot be reconciled with overt statutory ferring smuggle instead to the design. The Constitution the constitutional aggressive under cover of an amendment enacting and procedure establishes a reading loosely of related amending pres- and statutes: bicameralism way, the result precedents. Either Const, I, § entment. See U.S. art. 7. Need- legislative same: the circumvention of say, statutory brought to amendments less people govern which them- process through you by judiciary pass to do not selves. process. why That is a textualist deci- on Respect imposed for the constraints sion method matters: When we assume judiciary by system a of written law meaning power original public to alter the fidelity begin must to the traditional through process a of inter- statute statutory interpretation: principle first power we a that is not pretation, assume rule of deci- supplies When a statute assigns power ours. The Constitution sion, give our role is to effect to the enact- statutory law to the to make and amend text, interpreting statutory lan- ed representatives people. elected guage person a reasonable would have today’s might However welcome decision understood it at the time of enactment. We matter, at policy great be as a it comes are not authorized to infuse the text with a representative self-government. cost to up- or to new or unconventional social, changed it eco- respond date I nomic, political conditions. Rights of the Civil Act of 1964 Title VII contexts, statutory

In a handful of Con- fail makes it unlawful for an “to courts with gress has vested the federal discharge any indi- or refuse to hire or authority to consider and make new rules vidual, to discriminate or otherwise way. of law in the common-law The Sher- ... individ- any individual because of such archetype man Act is the of the so-called race, color, sex, religion, or national statutes,” ual’s very but there are “common-law 2000e-2(a)(l). § 42 Sexual origin.” U.S.C. few of these and Title VII is not one of Airlines, Transp. Inc. v. is not on the list of forbidden Nw. Work- them. orientation Am., AFL-CIO, discrimination, 77, categories ers Union employment interpretive updating” "judicial on 1. He method of inter- the name describes this throughout opinion gives page 'pretation his

361 consistently long dramatically years and we have held shifted in the 53 since per Rights decisions based on a the Civil Act was adopted. Lambda classify peo Legal’s proposed son’s sexual orientation do not reading new of Title ple on the basis of sex and thus are not plaintiff behalf of VII —offered Kimber- prohibition ly Hively covered appellate stage VII’s dis of this crimination of sex.” litigation strong “because Hamm v. foothold in current —has Prods., Inc., Weyauwega popular opinion. Milk 332 F.3d (7th 2003); Spearman Cir. striking change This cultural informs a (7th Co., Ford Motor 231 F.3d legislative change case for might even- 2000); Hosp. Cir. Hamner v. St. Vincent & tually persuade the people’s representa- Ctr., Inc., Health Care F.3d to amend the implement tives statute to (7th Airlines, 2000); Inc., E. Cir. Ulane v. public policy. new But it does not bear on 1984). 742 F.2d This inquiry properly the sole before the en interpretation many has been stable for prevailing banc court: Is the interpretation broadly accepted; decades and is all cir of Title discrimination on VII —that the agree that sexual-orientation discrim cuits basis of sexual orientation is different in ination is a distinct form of discrimination kind and not a form of sex discrimina- synonymous is not with sex discrimi wrong original as an matter? tion— Majority Op. pp. nation. 341-42 See cases). (collecting A jettisons Today prevailing the court that question Legal On Lambda has not interpretation polar oppo- and installs the legal persuasion. its of carried burden To Suddenly site. sexual-orientation discrimi- clear, agree my colleagues I nation is sex discrimination and thus is proposed interpretation new is not nec justifica- actionable under Title VII. What essarily simply incorrect no one in change is for this radical in a tion offered Congress adopted the 1964 Title VII well-established, interpretation uniform of anticipated its application intended important indeed, transformational— — discrimination. The sub sexual-orientation My colleagues statute? take note of the jective legislators do not intentions “absence from the de- Supreme Court’s Statutory is an ob interpretation matter. p. bate.” Id. at debate? There is What jective inquiry meaning that looks for the debate, at no least not the relevant conveyed to a statutory language rea long-standing interpretation sense. Our of person sonable at the time of enactment. Title VII is not an outlier. From the stat- objective meaning of the text is not day, inception present ute’s to the by delimited what individual lawmakers appellate unanimously courts have and re- specifically they had in mind when voted way, peatedly read the statute the same as Supreme for the statute. The Court made my colleagues acknowledge. do must and point this clear in Oncale when it said that pp. Id. at 341-42. The Court has “statutory go beyond often prohibitions in, unanimity weigh had no need to principal reasonably compara evil to cover among appeals strongly sug- the courts of evils, ultimately provisions and it is ble gests long-settled interpretation that our is principal laws rather than the con our correct. legislators by of our which we are cerns governed.” v. Sundowner Of course there is a robust debate on Oncale Offshore Servs., 75, 79, culture, media, Inc., subject in our 523 U.S. 118 S.Ct. (1998). Broadly worded politics. gay rights Attitudes about have Equal Amendment’s Protection applied to circum- teenth regularly statutes are Clause, subjective involving as well as cases sex ster beyond contempla- stances eotyping, prominently most Price Water adopted who tion of the lawmakers Hopkins, house v. text. (1989). 104 L.Ed.2d268 Indeed, it

That much is uncontroversial. rule-of-law from a foundational derives analysis begin But the must with the principle: text; statutory largely ends there too. Is remotely plausible it even incompatible with demo- simply

[I]t indeed, adopted, when Title VII was reasonable even with government, cratic person competent English language in the government, fair have banning that a would have understood law lawgiver what the a law determined meant, employment discrimination “because of lawgiver than what the rather sex” also banned discrimination because of government promulgated.... [Ours a] no, laws, orientation? The answer is may not of men. Men intend will; course not. they it is what but laws us. they enact which bind “It is a fundamental canon of Interpreta- Scalia, A Matter Antonin that, construction unless otherwise de Law 17 fined, and the tion: Federal Courts interpreted taking words will be 1997). ed., (Amy Gutmann ordinary, contemporary, their common — meaning.” method, Corp., U.S. Steel I interpretive So as a matter of Sandifer U.S. -, 870, 876, 187 L.Ed.2d my colleagues scope agree with (2014) (internal quotation 729 marks omit subjective by Title is not limited VII ted). as “contemporary” The word used legislators. enacting intentions of the Or as contemporaneous here with the means puts elegant it in Judge Chief Wood enactment, “contemporary” statute’s not opinion majority, for the en banc the ex- 876-77; at as “now.” Id. see also Jack pectations enacting legislators of the “can- Gaines, P.C., son v. Blitt & 833 F.3d way provisions not stand in the of the (7th 2016) (citing 863 and Majority are on the books.”2 law that Sandifer explaining statutory interpretation Op. p. at 345. to the of the at

“look[s] word[s] enacted”). the time the statute The B interpretive inquiry original looks to the That our The agreement is where ends. public meaning of the text. majority rests interpreta- en banc its new thought tion of sex discrimination on a Title does not define discrimination VTI common, ordinary from the “tried-and- of sex.” In experiment drawn “because us- now, comparative proof age true” method of often in 1964—and for that matter— by plaintiffs biologically used in discrimination cases. the word “sex” means male or majority female; at not refer to sexual p. Id. 345. The also invokes it does also See, Sex, Loving Virginia, e.g., 87 orientation. The American Heritage English Dictionary (1967), L.Ed.2d 18 1010 of the Lan- guage (1st 1969) striking (defining Court’s historic decision down ed. “sex” as Vir- by ginia’s miscegenation property quality organ- laws under the Four- which “[t]he 15, 2015). my colleagues, (July Majority Op. p. 2. Like I too decline to defer to at Foxx, agency defer- the EEOC's decision in Baldwin v. 344. This is not case about Appeal EEOC WL No. ence. according Accordingly, to their re- as isms are classified we said more than three functions[;] Ulane, of two divi- productive ago [e]ither decades Title prohibi- VII’s sions, designated female, male and of this tion of discrimination “because of sex” classification”); Sex, makes it an employer American unlawful for “to New Oxford Dictionary (3d 2010) (defining ed. “sex” against they discriminate women because (male categories “either of the two main they women and men because female) many into which humans and are men.” 742 F.2d at 1085. Because sexu- on the living things other are divided basis synony- al-orientation discrimination is not functions”); Sex, The reproductive of their ordinary mous with sex discrimination in Heritage Dictionary American Desk usage, prohibit does not sexual- 2013) (defining ed. “sex” as of the “[e]ither orientation discrimination. Not expressly divisions, male, by two female and which (obviously), fair implication ei- organisms most are classified on the basis ther. ' reproductive organs and func- of their tions]);] condition or character of be- [t]he C male”). ing female or understanding This commonsense speaker English To a fluent language Congress confirmed uses language ordinary and now—the —then legislate against when it does sexual-or- meaning of the word “sex” does not example, ientation discrimination. For fairly concept include of “sexual or- Against Act prohibits Violence Women ientation.” The two terms are never programs funded and activities from dis- interchangeably, used and the latter criminating per- “on the basis of actual or former; not subsumed within the there color, race, religion, origin, ceived national overlap meaning. Contrary is no sex, gender identity, ... sexual orienta- claim, majority’s vivid rhetorical tion, disability.” U.S.C. does not take “considerable calisthenics” 13925(b)(13)(A) added). § If (emphases separate Majority Op. p. the two. commonly sex discrimination is under- plainly words describe different encompass stood to sexual-orientation dis- traits, separate and the distinct crimination, listing catego- then the two easily grasped. of each term is does, separately, as statute is ries here, point dis- specifically More to the Hate surplusage. needless The federal of is not rea- crimination “because sex” example. impos- Act It Crimes is another sonably understood to include discrimi- heightened punishment causing a or orientation, es nation based on sexual a attempting bodily injury any to cause “to different immutable characteristic. Clas- person, perceived because of the actual or sifying people by sexual orientation is religion, origin, gender, national sexual or- by classifying different than them sex. ientation, disability gender identity, or of categorically The two traits are distinct (em- 249(a)(2)(A) § widely any person.” as such. 18 U.S.C. recognized and There added).4 ambiguity vagueness phases no or here. mate, chiefly: ap- potential partner, etc. a does not Later

3. The term “sexual orientation” identity gen- person’s in relation to the sexual pear the time of in dictionaries or around attracted; usually der to whom he or she is According to the cur- Title VII’s enactment. heterosexual, being (broadly) bisex- the fact definition, synonymous rent ual, homosexual.”). or Orientation, Oxford English “sex.” Sexual Dic- (the (2009 ed.) process ("Originally: tionary the hate-crimes 4. A different subsection of of) goal, respect a orientation with to sexual imposes heightened penalty for law the same race, accommodations “because of examples public can be found elsewhere Other See, creed, color, sex, orientation, gen- sexual e.g., U.S.C. the U.S. Code. 3716(a)(1)(C) identity, origin, religion, national or (providing § federal assis- der added); disability”) (emphases local authorities for the Wis. Stat. tance to state and 106.52(3)(using language § investigation prosecution pro- and of certain similar public on discrimination in accommoda- prejudice crimes “motivated based hibit race, color, tions); Act, Rights reli- Human perceived the actual or Minnesota 363A.ll(l)(a)(l) (same); § origin, gender, sexual orien- Minn. Stat. gion, national Or. 659A.403(1)(same); tation, § gender identity, disability Washing- or of the Rev. Stat. victim”) added); Act, Rights ton (emphases U.S.C. Civil Rev. Wash. Code 1092(f)(l)(F)(ii) 49.60.030(1) § (requiring colleges (declaring right § and as a civil report “right informa- free from discrimination universities to collect and race, creed, color, national regarding campus, tion crimes on includ- because ori- sex, honorably ing involving bodily injury any gin, discharged “crimes veteran or status, orientation, person, intentionally military in which the victim is sexual or the presence any disability”) or ... perceived (emphases selected because of the actual 2-1402.31(a) (forbid- race, added); § gender, religion, origin, national sex- D.C. Code orientation, gender identity, ethnicity, ding ual certain forms of discrimination “based victim”) race, color, disability (emphases perceived: on the actual or 294e-l(b)(2) added); sex, (requiring religion, origin, age, 42 U.S.C. national ... [or] individual”) any a ... applicants for federal mental-health edu- sexual orientation added); cation-grant program par- (emphases to demonstrate Bloomington, Ind., Code 2.21.030(10) § ticipation groups (defining “discriminatory “of individuals and from racial, ethnic, cultural, geograph- practice” person different as “the exclusion of a ic, religious, linguistic, person equal and back- another from opportunities class race, color, sex, grounds, genders religion, sexual because of nation- different orientations”) added). orientation, (emphases ancestry, al origin, gender identity, disability, housing status State and local antidiscrimination laws veteran”) added); (emphases status as distinguish likewise between sex discrimi- § (defining 581-101 Indianapolis, Ind., Code nation and sexual-orientation discrimina- prohibited “discriminatory practices” to in- by listing separately tion them as distinct denying employment clude and educational See, e.g., forms of unlawful discrimination. opportunity, public access to accommoda- Comp. Act, Human Rights Illinois III. tions, acquisition real estate “based 5/l-103(Q) (defining “unlawful dis- Stat. race, color, religion, ancestry, age, na- crimination” as “discrimination sex, origin, disability, tional sexual orien- race, color, person of his or her tation, gender identity, or United States sex, religion, origin, ancestry, age, national status”) military service veteran (emphas- status, status, protection marital order of added). es status, disability, military sexual orienta- tion, on, pregnancy, discharge or unfavorable I go point could but the has been service”) added); military (emphases from uniformity usage powerful made. This Act, Rights objective Iowa Civil evidence sexual-orientation Code Iowa 216.7(l)(a) § (prohibiting broadly recognized discrimination is as an 249(a)(1). causing attempting bodily injury § to cause person’s

because of a race. 18 U.S.C. category Ivy promote of discrimination Tech refused to independent her to professor with sex discrimi- full-time synonymous part- and is not canceled her sex; teaching time contract because nation. she does not claim that she was treated II differently similarly than a situated man. alleges She Tech took these ad- majority superfi- My colleagues against verse actions her because she ais cially acknowledge Ulane’s “truism” that lesbian, not because she is a woman. So sex discrimination is discrimination based majority’s discussion of what person’s biological Majority Op. on a sex. “alleges,” p. id. at by followed it, however, p. they at 341. As see even if 12(b)(6) incantation of the Rule standard sex discrimination is understood in the or- evaluating sufficiency plain- for of the way, dinary sexual-orientation discrimina- (“[w]e allegations tiffs factual take the tion is sex discrimination because “it is her”), light facts in the most favorable to actually impossible to discriminate on the seriously misleading. id. is of sexual orientation without discrim- basis p. on the inating basis sex.” Id. appeal nothing This has to do with Hive- ly’s allegations. factual We have a employer Not true. An who refuses to legal question meaning about the of Title drawing is not a line hire homosexuals Legal advancing VII. Lambda a creative job applicant’s based sex. He is not legal argument reinterpreting new Ti- excluding they men are gay men VII, deploying comparative tle method they and lesbians because are women. His (its proof not as a method of normal and discriminatory independent motivation is function) thought intended but as a experi- applicant’s of and unrelated to the sex. imbuing ment with the end of the statute (misandry misogyny) and hom- Sexism with a new that it did not bear at kinds of ophobia separate prejudice inception. its classify ways people distinct based on different immutable characteristics. highlights deeper problem This a Simply put, sexual-orientation discrimina- comparative analysis. pur the court’s The sex; classify people tion doesn’t pose comparative of the method is to iso doesn’t draw distinctions but male/female statutorily late whether a forbidden moti targets instead homosexual men and wom- vation is at work as a matter —in a factual en for harsher treatment than heterosexu- case, sex-discrimination to isolate whether al men and women. particular a the defendant took majority opinion merges against par these two adverse action ticular categories employee distinct of discrimination female because she is misapplying comparative particular method of woman or male em proof by plaintiffs ployee often used discrimina- because he is a man. Title VII’s matter, im- provision pro tion cases. As a threshold it’s “intentional discrimination here, portant taking to note that as used hibits certain motives” for adverse job actions, comparative serving method is not its EEOC v. Abercrombie & Fitch usu- — Stores, Inc., U.S. -, purpose; al and intended it is not invoked (2015), a re proof technique as a method or a so as claim, sufficiency quired of the evaluating plaintiffs factual element allegations plaintiff prove employer or must that the ac evidence. That’s because course, not, intent motive to Hively tually has raised a claim of acted with the statutorily allege sex discriminate on the of a discrimination. She does not basis meaning of Title text employ plain he made the That’s the VII’s protected trait when An originally evidentiary understood. question, Ricci v. DeSte as ment decision 557, 577, comparative proof 174 test like the method fano, 557 S.Ct. U.S. (2009) utterly to here and is out (citing Watson v. Fort has no work do L.Ed.2d 490 Worth, 977, 986, Tr., of place. Bank & (1988)). 2777, 101 L.Ed.2d Moreover, majority the distorts the com- proof parative by opportunistically is a method fram- comparative method ing comparison. the If the aim is to isolate technique uncovering for the em- useful discriminatory on the taking motive for the chal- actual motive based ployer’s real sex, every- Comparing plaintiff plaintiff’s the to a then we must hold lenged action. similarly employee opposite thing except plaintiff’s constant the sex. situated my colleagues by chang- But load the dice help sex can the fact finder determine actually plaintiffs variables —the sex and employer ing the moti- two whether arrive at' the plaintiffs hypo- the sex or acted for sexual orientation —to vated comparator. reasoning other reason. It’s a device for ferret- thetical The court’s some If discriminatory essentially compare motive distills to this: we ing prohibited out a woman, Hively, hypotheti- to employ- as an actual cause of the adverse homosexual man, action; A, by controlling it does this for cal Professor a heterosexual we ment Ivy actually If can Tech is disadvan- possible plaintiff other motives. a female see Hively point employee taging can to a male who is identi- she is a woman. every respect Majority Op. pp. cal to her in material 345-46. favorably, more then the fact was treated isolating As a test for an actual case of can finder draw an inference unfa- discrimination, way of framing the actually vorable treatment was motivated comparative question doesn’t do the trick. plaintiff’s sex. Simply put, comparison job can’t do its majority not com- of sex discrimination the actu- using ruling Here the is Ivy (by to al for parative employer’s method isolate whether reason decision motivations) by Hively’s ruling out if actually possible Tech was motivated other holding every- it to full- promote scrupulous sex when refused her to we’re about professor part-time thing except plaintiff’s time and canceled her constant sex. teaching repeat, plaintiffs contract. To does includes sexual orienta- That allegation. really trying Her factual claim tion. If serious about not make we’re Ivy promote played is that Tech refused to isolate sex discrimination whether decision, specific employment and canceled her contract because she is a role in a only may question lesbian. The us is wheth- test must exclude other factors er that claim—her real claim—is action- have been decisive. under Title as a able matter law. comparison For as a test be valid pure question

That’s a inter- role of sex discrimination pretation. decision, compari- proper But is to Tech comparative proof quali- method of is son ask how treated test; evidentiary interpretive gay employer not an men. If an willing an fied lesbians, It nothing gay tool. tells us about the hire men but not then the scope ordinary English comparative exposed of Title In method has an actual VII. If, usage, sexual-orientation discrimination is case of sex discrimination. on the other hand, a distinct form of discrimination and is not hires heterosexual with, synonymous rejects all sex discrimination. men and women homosexu- interpretive Second, al then no inference of sex dis- applicants, function. the Supreme though possible, crimination is we could Court has never deployed an abstract ver- perhaps draw an inference of sexual-orien- comparative sion of the method proof discrimination. tation the original meaning scope illuminate VII, Title nor has it even hinted such my colleagues But of course are not an proper abstraction is a interpretive tool. actually trying to isolate sex discrimination good Ordinary For reason. people do not as the real motivation for Tech’s deci- use abstract thought experiments to not, is, as- They testing sion. are for a cribe to texts.5 They true case of sex discrimination. are using the comparative method as a rhetori- conjure entirely

cal device to an new un- Ill derstanding of the term “sex discrimina- context, tion” for use the Title VII one A reality that denies the that sex and sexual majority Loving, also draws on orientation are different traits and that Supreme Court’s iconic decision invalidat- classifying by people sexual orientation is ing Virginia’s miscegenation statutes on classifying not the same as them sex. equal-protection grounds. This case is not artifice, interpretation. This is a Loving. Miscegenation variant of laws My colleagues insist that virtue of “[t]he plainly employ invidious racial classifica- looking comparators at ... is that tions; they inherently racially discrimi- light process interpretive sheds on the contrast, natory. In sexual-orientation dis- question by Hively’s raised case: is sexual- springs wholly crimination from a different orientation discrimination a form of sex kind of than bias sex discrimination. The discrimination, given way in which the two forms of classify people discrimination interpreted Court has the word based on different traits and thus are not Majority Op. p. ‘sex’ in the statute?” at the same. First, I responses. 347. have two at the In Loving, Virginia tried to its repeating myself, risk of of “look- defend point antimiscegenation regime by insisting ing comparators” at cases is to evidentiary permits miscegenation actually see if the statutes do not dis- record a discriminatory inference o'f actual criminate based on race because both the factual motive; comparative spouses method has no black and white in an interracial (A) Judge ing against employee Flaum’s concurrence a offers some- because of sex, (B) way employee’s what different to think about sexual-or- their sexual attraction (B) ientation discrimination: "Fundamental to individuals of the same sex." Id. Part true; (A) homosexuality part definition of is the at- is not. An who refuses applicant traction to individuals of the ‘same ... to hire a sex.’ lesbian because she is person’s only One cannot consider a homosexuali- lesbian "accounts for” her sex in the ty accounting doing without also their sex: limited sense that he notices she is woman. meaningless." object employer’s so would render ‘same’ ... But not the that's Flaum, J., intent, concurring, p. discriminatory part. 358. But an em- not even in Her ployer categorically motivating employ- who won’t hire homosex- sex isn’t a factor for the decision; "accounting job applicant's employer objects uals is not for” a to her er's attempt conceptu- meant sex in sense antidiscrimination sexual orientation. This law; hiring policy ally split homosexuality parts per- of "no homosexuals need into two —a apply” gender blind. The next sentence in son’s sex and his or her sexual attraction to such, analysis persons likewise doesn’t follow: "As of the same sex—doesn’t make sexu- discriminating against employee al-orientation actionable as sex they are homosexual constitutes discriminat- discrimination. 368 miscegenation laws inescapable at truth that punished equally. 388 U.S.

marriage are (“[T]he 8, contends State inherently They premised 87 S.Ct. are racist. that, statutes miscegenation its because superiority on invidious ideas about white the white and the Ne- both punish equally racial classifications toward the and use marriage, in an interracial gro participants purity supremacy. end of racial and white statutes, reliance on despite their these discrimination, on the Sexual-orientation classifications!!,]do not constitute an racial hand, inherently other is not sexist. No upon based invidious discrimination argues that sexual-orientation discrim- one race.”). made short Supreme The Court perpetuate promote ination aims to argument: specious “[W]e work of that short, In supremacy Loving of one sex. containing racial with statutes [here] deal majori- compels supports neither nor classifications, equal appli- and the fact un- ty’s upend long-settled decision to immunize the statute[s] cation does not and derstanding that sex discrimination justification very heavy from burden discrimination are dis- sexual-orientation has tra- the Fourteenth Amendment which tinct. of state statutes drawn ditionally required 9, race.” Id. at 87 S.Ct. 1817. according to reason, majority’s For the same reli- explain on to The Court went Holcomb, Parr, Drake, ance on which purpose central of the Four- “clear and context, Loving to the Title translated VII all was to eliminate teenth Amendment entirely inapt. An who refuses racial dis- sources of invidious official state employee to hire or fires an based on his 10, Id. at crimination in the States.” marriage obviously drawing interracial continued with this: 1817. The Court 5.Ct. akin to invidious racial those classifications Virgi- but that question “There can be no Virginia’s miscegenation inherent in laws. solely rest miscegenation nia’s statutes Loving's equal-protection holding extends according to race. upon distinctions drawn racial-discrimination claims to Title VII proscribe generally accepted The statutes same con- because those claims share the engaged if in members of dif- conduct They textual foundation. arise a nation 11, at 87 S.Ct. 1817. ferent races.” Id. slavery, original whose sin is where some “[penalties explaining After sought perpetuate suprem- white states an incident to slav- miscegenation arose as century acy recently ago, as a half 6, 1817, and are “de- ery,” id. at 87 S.Ct. vestiges iniquitous where the of this histo- Supremacy,”6 to maintain id. signed White in other ry persist workplaces our 11, 1817, the announced at Court society. Equal institutions of our Pro- holding: “There can be no doubt that its solely prohibition and Title restricting marry the freedom to tection Clause VII’s of racial classifications violates the workplace of racial Equal of the Protection central curtail the evil of racism operate both Clause,” 12, 87 S.Ct. 1817. id. That antimiscegenation. inherent ex- why Loving applies to Title plains passages

As these from Court’s clear, Loving make rests on the racial-discrimination claims but is not opinion ” 1, pride.’ Loving Virginia, Virginia's highest identified what racial court had (1967) "legitimate purposes" it said were the state’s " Naim, miscegenation (quoting preserve ‘to Naim v. 197 Va. 87 S.E.2d for its laws: This, citizens,’ (1955)).- integrity racial and to [the state’s] said, blood,' "obviously mongrel prevent corruption of ‘a an endorsement 'the citizens,’ Supremacy.” of White Id. breed of and 'the obliteration of doctrine reading sexual-orientation dis- the element of warrant causation a mixed-mo- into tives Title VII The plurality opinion crimination the statute. case. very

made that clear in its first paragraph: granted “We certiorari resolve a conflict B among Appeals the concerning Courts majority on also relies cases involv- the respective proof burdens of of a defen- sex most ing stereotyping, notably the Su- dant a plaintiff in suit under Title VII in preme Court’s decision Price Water- when it has been shown that an employ- v. Hopkins. specifically, my house More ment decision from a resulted mixture of colleagues a claim conclude that of sexual- legitimate illegitimate motives.” Id. at indistinguish- orientation discrimination is 232, 109 plurality S.Ct. 1775. The a devised involving from a claim sex stereotyp- able burden-shifting approach use in mixed- Majority 345-47.1 ing. Op. pp. disagree. at motive cases. 109 Id. at 1775. S.Ct. Nothing in Hopkins altered the traditional Justices White and O’Connor concurred in understanding that sexual-orientation dis- judgment, filing the a separate each opin- type crimination is a distinct of discrimina- ion agreeing burden-shifting the with synonymous tion and is not with sex dis- taking method but issue with plurali- the crimination. ty’s discussion of the substantive standard matter, a preliminary Hop- As neither 258-61, of causation. Id. at 109 S.Ct. 1775 nor any other decision of the kins Su- (White, J., concurring in the judgment); id. an preme independent Court establishes 261-79, (O’Connor, J., at 109 1775 S.Ct. for, cause of action or “doctrine” or “theo- concurring judgment). in the of, ry” Hopkins “sex stereotyping.”7 held Only very passage very a short in the only presence sex stereotyping long plurality actually opinion addresses employer certainly an “can be evidence” subject the stereotyping. of sex The plural- discrimination; case, sex prove her ity simply accepted the district court’s fac- plaintiff always prove must that “the finding stereotyping tual a played sex on employer actually gender relied in role in Price Waterhouse’s decision to making its at decision.” 490 U.S. 109 place Ann Hopkins’s partnership bid for on (second added). 1775 emphasis S.Ct. (describ- 236-37,109 hold. at Id. S.Ct. 1775 ing judge’s findings); the trial factual It’s also often overlooked that the lead see four-justice (“As also id. at a to the opinion Hopkins plu- was case, stereotyping existence of rality, opinion. sex majority not a Id. at quarrel we are not with the inclined S.Ct. 1775. Two Justices concurred District that a Court’s conclusion number judgment they only, nothing said partners’ comments showed sex a stereotyping “theory” about of sex work.”). stereotyping Regarding at the le- 258-61, Id. at discrimination. gal significance (White, stereotyping of sex as evi- J., concurring judg- discrimination, ment); plurality dence of sex 261-79, id. at 109 S.Ct. 1775 only say: had this to (O’Connor, J., concurring judgment). point played another that’s often In a saying gender

Here’s missed: motivat- decision, Although Hopkins ing the facts in in an part involved sex we that, stereotyping, legal employer the actual issue dealt mean if asked the we proof with allocation of burdens of the moment of the decision what its phrase “gender stereotyping," Some lower courts use but Court has nonconformity'' interchangeably never used that term. "sex settled, long-understood dis- if a truth- doubt on and we received reasons were sex discrimination and tinction between one of those reasons would response, ful discrimination.8 a sexual-orientation applicant employee be that specific context of sex In the woman. plainly, To the matter heterosexuali- put acts on stereotyping, employer who stereotype; it is not a ty is not female cannot that a woman the basis of belief sex-specific stereotype; male is not be, or that she must not aggressive, stereotype at all. An who hires gender. has acted on the basis employees is neither as- heterosexual

suming insisting nor that his female and specif- employees stereotype match a of sex stereo male legal As for the relevance insisting sex. He is instead beyond day when an ic to their typing, we are match the dominant sexual employees his employees evaluate employer could their sex. Sexual- regardless orientation they that matched assuming insisting or classify not orientation discrimination does associated with their stereotype “ idiosyn- or according to invidious people employers to forbidding for group, ‘[i]n It stereotypes. cratic male or does against individuals because discriminate female at all. spring sex-specific not from bias sex, Congress to strike of their intended disparate spectrum the entire easy to see if we take the point resulting treatment of men women posed by plurality opinion question ” Angeles stereotypes.’ sex Los from it onto this case. Hopkins map Manhart, Dept. and Power Water Ivy Tech suspects that the real reason 1370, 702, 707, n.13 [98 435 U.S. rejected repeated applications pro- her (1978), quoting Sprogis v. L.Ed.2d 657] her orientation. Assume motion is sexual - Lines, Inc., 1194, 444 F.2d Air United suspicion the moment that her is cor- (7th 1971). An who Cir. Ivy rect. If we asked Tech “at the moment in women but objects aggressiveness to if of the decision what its reasons were and places trait positions require whose this response,” we received a truthful id. at impermissi women an intolerable 250, 109 S.Ct. would it be reasonable 22; job they of a if behave ble catch out that it re- expect Ivy respond to Tech to if job they and out of a do aggressively she is a jected applications not. Title lifts women out of this responded If Tech truth- woman? No. bind. fully, it would confess that its decisions (footnote orientation, 250-51, Hively’s were based on sexual Id. at 109 S.Ct. 1775 omitted). any not her sex. Nothing passage casts pay requiring passage of the the Court held that women 8. The two cases cited in this straightforward plurality opinion plain were cases the fund than men was a case more into 707-10, Manhart was a chal of sex discrimination. Id. at 98 S.Ct. of sex discrimination. employer’s policy required lenge to an employees larger make contribu female Sprogis challenge an airline’s rule was a employee pension fund than male tions to the attendants, flight but not male that female of L.A., employees. City Dep’t Water & Pow attendants, flight Sprogis must be unmarried. 702, 704-06, Manhart, er v. Lines, Inc., Air 444 F.2d v. United (1978). The Court noted 1971). straightfor- was a This too employer's policy on based case sex discrimination. Id. at 1198 ward gener stereotypes but rested on actuarial (holding that “it is clear that United has con- parties accept unques alizations that "the Women, class, by applying one standard long [Title VII] travened tionably as a do live true: Still, women”). and one for Id. at 98 S.Ct. 1370. for men er than men.” it’s a serious mistake to think that So sex harassment cases under Title VII. The reversed, or Hopkins supports requires either new Court holding that “nothing in interpretation equates necessarily of Title VII that Title VII bars claim of discrimination sexual-orientation discrimination with sex ‘because of ... sex’ merely plaintiff because the contrary, Hopkins discrimination. To the and the defen- (or person dant charged gesture acting does not in that If even direction. defendant) behalf of the are of the same involving lower-court decisions “sex 79,118 sex.” Id. at S.Ct. 998. stereotyping” confusing hodge- are a podge agree they I are—the —and To sketch the circumstances in which confusion stems from an unfortunate ten- evidence of might same-sex harassment dency Hopkins to read for more than it’s discrimination, support a claim of sex worth. That’s not a reason to embed the explained Court first how evidence of confusion in circuit law. workplace harassment permits an infer- ence of sex general discrimination as a

C matter. The explained, for example, compel support Neither does Oncale in an opposite-sex harassment cáse today’s decision. held Oncale involving “explicit implicit proposals of may, same-sex sexual harassment in an .activity,” an inference of sex dis- case, appropriate support a claim under easy crimination is to draw because “it is provided Title that it “meets VII the statu- reasonable to assume those proposals 79-80, tory requirements.” at 523 U.S. 118 would not have been made to someone of The in 80,118 S.Ct. 998. Court reiterated that all the same sex.” Id. at S.Ct. 998. But cases, sex-discrimination including sexual- the same is not true in a involving case cases, issue, harassment critical Ti- “[t]he same-sex harassment unless the evidence indicates, tle VII’s text is whether mem- homosexual; shows that the harasser is exposed bers of one sex are to disadvanta- then would be to infer reasonable geous terms or conditions of targeted that the victim was because of his to which members of the other sex are not sex.9Id. exposed.” Id. at (quota- 118 S.Ct. 998 The offered two examples Court other omitted).

tion marks might support conduct that an inference of Oncale, plaintiff The in a male roust- sex discrimination in a same-sex harass- platform about on an oil the Gulf of ment case. The first is when a harasser Mexico, alleged sex-specific derogatory that his male coworkers uses “such and “sex-related, regularly subjected him to terms” as to make it clear that he “is humiliating” physical by general hostility pres- verbal and harass- motivated to the ment. Id. at 118 S.Ct. 998. The lower ence of of the same [members sex] courts claim workplace.” dismissed his based on an Id. The second is when the approach categorically rejected plaintiff comparative that same- offers “direct evi- jection distinguish 9. Note that the Court’s focus is on the the law should not harasser, "acting orientation of the not the sexual between claims of discrimination for gay” "being orientation or attributes of harassment and claims of discrimination for gay.” proper victim. Some lower courts have missed this Indeed it should not. On a un- important point mistakenly derstanding Hopkins of the allowed limits On- cale, proceed same-sex harassment cases to to the neither claim is actionable under Title alleges extent the victim he suffered VII. Both are claims of sexual-orientation dis- crimination, supposed "gay harassment based on his be- which is not covered the stat- predictably haviors.” This has drawn an ob- ute. categories purposes equal-pro- alleged harasser ical how the dence about scrutiny. in a mixed- If sex discrimination and of both sexes tection treated members 80-81, at 118 S.Ct. 998. discrimination were workplace.” Id. sexual-orientation sex same, undeveloped on really the record was one and the then Because remanded for fur- applied the Court the intermediate stan- points, these would have judicial at 118 S.Ct. 998. proceedings. scrutiny governs ther Id. re- dard classify people by sex. view of laws that short, authorizing claims same- In Virginia, States v. See United matter, a theoretical harassment as 515, 531, 2264, 135 L.Ed.2d 735 sexual- carefully tethered all the Court (1996). It did not do so. statutory re- claims to the harassment plaintiff prove discrimi- quirement Nothing Oncale

nation “because of sex.” E between sex dis- eroded the distinction Obergefell, Finally, drawing especially on discrim- crimination and sexual-orientation adhering to the my colleagues worry that to a new inter- opened ination or the door long-settled interpretation of of Title VII. pretation paradoxical legal landscape “creates ‘a revolutionary not a decision. Oncale was can married on Satur- person which a contrast, today’s decision the en In Monday just day and then fired transforma- profound banc court works p. (quoting Majority Op. act.’” by any measure. tion of Title VII Coll., Cmty. F.3d Hively v. Tech 2016)). 698, 714 The concern is D understandable, my colleagues conflate but support for its majority also finds action, the distinction between state which backdrop in “the decision limits, subject pri- to constitutional ... in the area of broad Court’s decisions action, regulated by statute. vate which er on the basis discrimination Equal The Due Process and Protection Evans, orientation,” 517 citing Romer v. are constitutional restraints on Clauses 620, 1620, L.Ed.2d 855 U.S. 116 S.Ct. 134 statutory re- government. Title VII is a Texas, 558, (1996); Lawrence v. 539 U.S. employers. legal regimes straint on 2472, (2003); 123 S.Ct. 156 L.Ed.2d 508 a accordingly. Any discrepancy is differ — Windsor, -, v. U.S. United States legislative, judicial, not correc- matter for (2013); 2675, 186 L.Ed.2d 808 133 S.Ct. tion. — —, Obergefell Hodges, v. U. S . (2015). 2584, 135 S.Ct. 192 L.Ed.2d 609 Majority pp. atOp. 349-50. job Kimberly Hively If was denied a actually majority’s position But the orientation, of her sexual she was First,

irreconcilable with these cases. Law- unjustly. But Title does not treated VII solely under the Due rence was decided provide remedy for this kind of discrimi- Clause; equal-protec- it was not an Process must argument nation. The should tion case. 539 U.S. at 123 S.Ct. 2472. Congress. addressed to cases, collapsing In the other far from sex well-understood distinction between IV dis- discrimination and sexual-orientation crimination, brings my point, last which actually preserved This me Court principle of stare decisis. The assigned it. The these two distinct concerns ... has analyt- general rule is that “store decisis forms of discrimination to different

373 ” ‘special statutory force’ in the domain of rule —that sexual-orientation discrimina- = ‘Congress “for interpretation remains free tion imputes to the discrimination — ” to alter what we have done.’ John R. not, a motive that is and need States, Sand & Gravel Co. v. United 552 be, present not Liability fact. under this 130, 139, U.S. 169 S.Ct. L.Ed.2d “theory” new of sex discrimination does (2008) (quoting Patterson v. McLean require jury not to find that the em- Union, 164, 172-73, Credit 109 ployer’s decision was actually motivated (1989)). Spe- plaintiffs sex. necessary That’s a no, cial force or assump- foundational predicate liability in all other sex-dis- regard tions of the rule of law and due cases, crimination but not here. Discrimi- prudential stability, virtues of reliabili- nation “because of sex” need not be found ty, predictability inspire should some fact; instead, as a the court impute will upend caution here. A decision to settled statutorily forbidden employ- motive to the precedent special justification.” “demands er if plaintiff proves — Bay Michigan Cmty., Mills Indian “because of sexual orientation.” -, 2024, 2036, U.S. 134 S.Ct. (2014) (quoting L.Ed.2d 1071 Atizona v. 203, 212,

Rumsey, 467 U.S. brings This me back to where I started. (1984)). “special justi- L.Ed.2d That The court’s new liability entirely rule is fication” must at begin least con- judge-made; it does not derive from the vincing challenged case that the precedent any text of Title meaningful sense. is gravely wrong. arrogated The court has power to itself the explained, convincing As I’ve case has protected category create a new under needed, If been made. more is consider liability may VII. Common-law rules step litiga- for a moment the next in this judicially way,11 evolve in but tion. When this case returns to the district fundamentally law is different. Our consti- court, it will not matter whether evi- requires tutional structure us to respect Ivy rejected Hively dence shows that Tech the difference. applicants, appli- favor of male female cants, aor combination of men women. It’s im- understandable that the court is If the facts show Tech hired patient protect gay lesbians and men posi- heterosexuals for the six full-time workplace from discrimination without tions, community college may then the be waiting for Congress Legislative to act. discriminating against found liable for change is arduous and can be slow to Hively That sex.10 will be so come. But we’re not authorized to amend positions even if all six were filled by interpretation. ordinary, Try explaining jury. ivomen. that to a reasonable, fair sex dis-

crimination as that term is used in Title VII does not include discrimination based end, In today’s decision must be orientation, wholly on sexual different recognized for what it is: a new form of kind of discrimination. liability imputed Title VII based on mo- Because Title VII tive, majority’s not actual motive. The prohibit new does not its terms sexual-orien- Unless, course, courts, Though supreme 10. Tech can show that not the state courts, qualified applicants empowered adjust was less than the federal com- rights were who hired. mon-law and remedies. discrimination, Hively’s case was tation respectfully I dissent. dismissed.

properly

Juan Carlos BARRAGAN- Petitioner,

OJEDA, SESSIONS, Attorney

Jeff General States, Respondent.

the United 16-2964

No. Appeals,

United States Court

Seventh Circuit.

Argued December April

Decided

Case Details

Case Name: Hively v. Ivy Tech Community College of Indiana

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Apr 4, 2017

Citation: 853 F.3d 339

Docket Number: 15-1720

Court Abbreviation: 7th Cir.