• Skip to primary navigation
  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer
  • Advertise
  • Contact Us
  • About Towleroad
  • Towleroad on Social Media
  • Privacy Policy

Towleroad Gay News

Gay Blog Towleroad: More than gay news | gay men

  • Travel
  • Sports
  • Law/Justice
  • Celebrities
  • Film/TV/Stream
  • Republicans
  • Madonna
  • Books
  • Men
  • Trans Rights
  • Tech/Science
  • Royals
  • Monkeypox
  • Madonna’s Daughter Lourdes Leon Drops First Single & Steamy Music Video: WATCH
  • Jonathan Knight secretly marries boyfriend Harley Rodriguez
  • Ex-football star Herschel Walker’s woes hurt Republican chance of taking U.S. Senate

7th Circuit Says Anti-Gay Discrimination is Sex Discrimination Under Title VII: An Analysis of the Ruling

Ari Ezra Waldman April 5, 2017 Leave a Comment

Kimberly Hively
Kimberly hively

Yesterday, a federal appellate court held, in Hively v. Ivy Tech Community College, that Title VII of the Civil Rights Act, which prohibits discrimination in the workplace “on the basis of sex”, also prohibits an employer from firing someone because he or she is gay. This is, as they say, a big f*in deal. Although the argument and decision are pretty straightforward, let’s break it down and discuss how we got here.

It has been a refrain among LGBT lawyers and advocates that, in states without their own anti-discrimination statute that included sexual orientation, an employee could be fired simply for being gay. After Obergefell, for example, it was true in some states that a man could marry a man in the morning and get fired in the afternoon. This was the case because federal nondiscrimination law did not explicitly cover sexual orientation.

Then the Equal Employment Opportunity Commission, an executive agency that hears employment discrimination cases, concluded that, actually, Title VII’s sex discrimination provision does cover sexual orientation discrimination. Think of it this way: Firing a man because he is married to a man is discrimination on the basis of sex because you wouldn’t fire a women for being married to a man. Only a man can be fired for being married to man, and only a woman could be fired for being married to a woman. Therefore, you are treating the sexes differently. That’s discrimination “on the basis of sex.”

But the ruling of an executive agency is not the law of the land. And there had been contrary court decisions from federal district and appellate courts affirming that Title VII was written to protect women in the workplace, not gays.

A lot has changed since Title VII was written and passed by Congress in 1964. In particular, the legal status of gay persons has changed. And anti-discrimination law itself is broader. In a case called Price Waterhouse v. Hopkins, the Supreme Court held that Title VII’s ban on sex discrimination can be triggered when an employee is discriminated against for failing to conform to gender stereotypes.

In that case, a female employee alleged that she was denied a promotion because the partners at Price Waterhouse thought her “too masculine.” They made fun of her appearance; suggested she wear lipstick, dresses, and high heels; and suggested that she was too “macho” and lacked “charm.” Notice how this kind of discrimination is not the classic form of sex discrimination. Ms. Hopkins was not denied a promotion because she is a woman; she was denied a promotion because she didn’t act like a stereotypical woman.

Hively, a lesbian, is also not a stereotypical woman. In fact, according to the majority opinion, she is the “ultimate case of failure to conform to the female stereotype” because she married a woman. Suddenly, discriminating against lesbians for being too masculine sounds a lot like sex discrimination.

Another Supreme Court case, Oncale v. Sundowner Offshore Services, had a hand in this. This is a complicated case, one that we’ll turn back to in time, and one that isn’t entirely on our side. But for now, note that Oncale was about male-on-male sexual harassment taking place on what may be among the most “masculine” workplaces out there short of a rugby team locker room and a police department: an oil platform. Supervisors and crew members taunted, threatened, assaulted, and humiliated Oncale, suggesting he was gay. One of them even threatened Oncale with rape. The company didn’t do anything about it.

The case made it all the way up to the Supreme Court because a lower court had found that men could not sexually harass men under Title VII. That, Justice Scalia said, was “argle bargle,” to use one of his choice phrases from another case. Giving us his best textualism, Scalia said that there is nothing in the statute that said that a man cannot discriminate against another man. The prohibition protects both men and women and even though the drafters of Title VII may not have thought at all about male-on-male harassment, they wrote a statute that said nothing about the sexes of the parties involved, only the nature of the discrimination and harassment.

Put these two cases together and sexual orientation discrimination is sex discrimination. A man harassing another man for allegedly loving men is actionable under Title VII per Oncale. A man firing a man because he isn’t masculine enough is actionable under Hopkins. In a way, Oncale and Hopkins adequately describe what being gay in the workplace is like. Many of us do not conform to gender stereotypes with respect to our behavior, mannerisms, attitude, and dress. And we all are attracted to persons of the same sex. Therefore, protecting sexual orientation discrimination under sex discrimination makes sense.

In the next column, we will discuss what happens next. Stay tuned.

Topics: Nature/Climate, Supreme Court, towleroad More Posts About: Antonin Scalia, Ari Ezra Waldman, discrimination, Kimberly Hively, law, Title VII

Related Posts
  • Legal expert tears apart flawed thinking of ‘deeply unprincipled’ Supreme Court originalists
  • Hong Kong law firm Vidler & Co, which handled protest-related cases, to close after 19 years
  • BK 99’s Stephanie Beatriz Says Even Her Favorite Shows Spread Bisexual Myths That It’s A Hyper-Promiscuous , Manipulative Phase
  • Jonathan Knight secretly marries boyfriend Harley Rodriguez

    Jonathan Knight secretly marries boyfriend Harley Rodriguez

    Published by BANG Showbiz English Jonathan Knight has married his boyfriend Harley Rodriguez. The New Kids on the Block star has confirmed he’s a married man after tying the knot with his longtime partner in secret …Read More »
  • Ex-football star Herschel Walker’s woes hurt Republican chance of taking U.S. Senate

    Ex-football star Herschel Walker’s woes hurt Republican chance of taking U.S. Senate

    Published by Reuters By David Morgan WASHINGTON (Reuters) – Republican hopes of taking control of the U.S. Senate in November could hinge on former football star Herschel Walker, a first-time candidate endorsed by Donald Trump, whose …Read More »
  • The Shocking Truth 25 Years After Princess Diana’s Tragic Death — Brother Charles Speaks Out

    The Shocking Truth 25 Years After Princess Diana’s Tragic Death — Brother Charles Speaks Out

    Published by OK Magazine mega August 31 marks the 25th anniversary of Princess Diana’s tragic death — and her only brother, Charles, proudly spoke out about his sister! “I’m always surprised by how difficult August 31 …Read More »
  • U.S. releases 2019 memo opposing Trump obstruction charges

    U.S. releases 2019 memo opposing Trump obstruction charges

    Published by Reuters By Sarah N. Lynch WASHINGTON (Reuters) -The Justice Department on Wednesday released under court order all of a 2019 memo https://www.justice.gov/file/1528466/download in which two top officials advised then-Attorney General William Barr not to …Read More »
Previous Post: « Bill and Hillary Clinton’s Nephew Tyler Clinton Signs with Powerhouse Modeling Agency IMG
Next Post: Trump Axes Steve Bannon from National Security Council »

Primary Sidebar

Adjacent News

  • Ivanka Trump & Jared Kushner Contently Stroll Hand-In-Hand As Donald Trump’s Legal Woes Mount

    Ivanka Trump & Jared Kushner Contently Stroll Hand-In-Hand As Donald Trump’s Legal Woes Mount

  • Biden to hold first political rally in run-up to November elections

    Biden to hold first political rally in run-up to November elections

  • Trump has displayed ‘anxiety in private conversations’ following Mar-a-Lago search: report

    Trump has displayed ‘anxiety in private conversations’ following Mar-a-Lago search: report

Good Trash: Going to Read It Somewhere, Y’know

  • Duke and Duchess of Sussex adopt new rescue dog

    Duke and Duchess of Sussex adopt new rescue dog

  • Vanessa Bryant awarded 16m in damages over helicopter crash photos

    Vanessa Bryant awarded 16m in damages over helicopter crash photos

  • Lisa Scott-Lee recalls surreal dinner date with Michael Jackson

    Lisa Scott-Lee recalls surreal dinner date with Michael Jackson

RSS Partner Links

  • An error has occurred, which probably means the feed is down. Try again later.

Most Recent

  • Madonna’s Daughter Lourdes Leon Drops First Single & Steamy Music Video: WATCH

    Madonna’s Daughter Lourdes Leon Drops First Single & Steamy Music Video: WATCH

  • Jonathan Knight secretly marries boyfriend Harley Rodriguez

    Jonathan Knight secretly marries boyfriend Harley Rodriguez

  • Ex-football star Herschel Walker’s woes hurt Republican chance of taking U.S. Senate

    Ex-football star Herschel Walker’s woes hurt Republican chance of taking U.S. Senate

  • The Shocking Truth 25 Years After Princess Diana’s Tragic Death — Brother Charles Speaks Out

    The Shocking Truth 25 Years After Princess Diana’s Tragic Death — Brother Charles Speaks Out

  • U.S. releases 2019 memo opposing Trump obstruction charges

    U.S. releases 2019 memo opposing Trump obstruction charges

  • William Orbit: ‘Queen loves DJs as long as they end sets with National Anthem’

    William Orbit: ‘Queen loves DJs as long as they end sets with National Anthem’

  • Sir Rod Stewart takes another cheeky dig at his long-time pal Sir Elton John with stage mockery

    Sir Rod Stewart takes another cheeky dig at his long-time pal Sir Elton John with stage mockery

  • Scott Maxwell: Marco Rubio says his campaign is ‘a disaster.’ Is he crying wolf or truly scared of Demings?

    Scott Maxwell: Marco Rubio says his campaign is ‘a disaster.’ Is he crying wolf or truly scared of Demings?

Most Commented

Social

Twitter @tlrd | Facebook | Instagram @tlrd

Footer

Copyright © 2025 · Log in

×