September 30, 2015
from the United States District Court for the Northern
District of Indiana, South Bend Division. No. 3:14-cv-1791 -
Rudy Lozano, Judge.
Bauer, Ripple, and Rovner, Circuit Judges.
ROVNER, CIRCUIT JUDGE.
again this court is asked to consider whether Title VII of
the Civil Rights Act of 1964 protects employees from or
offers redress for discrimination based on sexual
orientation. This time, however, we do so in the shadow of a
criticism from the Equal Employment Opportunity Commission
(EEOC) that this court and others have continued to
reflexively declare that sexual orientation is not cognizable
under Title VII without due analysis or consideration of
intervening case law. The EEOC's criticism has created a
groundswell of questions about the rationale for denying
sexual orientation claims while allowing nearly
indistinguishable gender non-conformity claims, which courts
have long recognized as a form of sex-based discrimination
under Title VII. After a careful analysis of our precedent,
however, this court must conclude that Kimberly Hively has
failed to state a claim under Title VII for sex
discrimination; her claim is solely for sexual orientation
discrimination which is beyond the scope of the statute.
Consequently, we affirm the decision of the district court.
began teaching as a part-time adjunct professor at Ivy Tech
Community College in 2000. On December 13, 2013, she filed a
bare bones pro se charge with the Equal Employment
Opportunity Commission (EEOC) claiming that she had been
"discriminated against on the basis of sexual
orientation" as she had been "blocked from fulltime
[sic] employment without just cause, " in violation of
Title VII. (Short Appendix to Appellant's Brief, 5).
After exhausting the procedural requirements in the EEOC, she
filed a complaint, again pro se, in the district court
alleging that although she had the necessary qualifications
for full-time employment and had never received a negative
evaluation, the college refused even to interview her for any
of the six full-time positions for which she applied between
2009 and 2014, and her part-time employment contract was not
renewed in July 2014. In short, she alleged that she had been
"[d]enied full time employment and promotions based on
sexual orientation" in violation of Title VII, 42 U.S.C.
§§ 2000e et seq.
college's defense in both the district court and on
appeal is simply that Title VII does not apply to claims of
sexual orientation discrimination and therefore Hively has
made a claim for which there is no legal remedy. The district
court agreed and granted Ivy Tech's motion to dismiss.
Hively v. Ivy Tech Cmty. Coll., No. 3:14-CV-1791,
2015 WL 926015, at *1 (N.D. Ind. Mar. 3, 2015).
panel could make short shrift of its task and affirm the
district court opinion by referencing two cases (released two
months apart), in which this court held that Title VII offers
no protection from nor remedies for sexual orientation
discrimination. Hamner v. St. Vincent Hosp. & Health
Care Ctr., Inc., 224 F.3d 701, 704 (7th Cir. 2000);
Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th
Cir. 2000). Title VII makes it "unlawful employment
practice for an employer to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate
against any individual ... because of such individual's
race, color, religion, sex, or national origin" 42
U.S.C. § 2000e-2. This circuit, however, in both
Hamner and Spearman, made clear that
"harassment based solely upon a person's sexual
preference or orientation (and not on one's sex) is not
an unlawful employment practice under Title VII."
Hamner, 224 F.3d at 704; Spearman, 231 F.3d
at 1084 (same). Both Hamner and Spearman
relied upon our 1984 holding in Wane v. Eastern Airlines,
Inc., 742 F.2d 1081 (7th Cir. 1984) in which this court,
while considering the Title VII claim of a transsexual
airline pilot, stated in dicta that "homosexuals and
transvestites do not enjoy Title VII protection."
Id. at 1084. In Ulane, we came to this
conclusion by considering the ordinary meaning of the word
"sex" in Title VII, as enacted by Congress, and by
determining that "[t]he phrase in Title VII prohibiting
discrimination based on sex, in its plain meaning, implies
that it is unlawful to discriminate against women because
they are women and against men because they are men."
Id. at 1085. We also considered the legislative
history of Title VII, explaining that it was primarily meant
to remedy racial discrimination, with sex discrimination
thrown in at the final hour in an attempt to thwart adoption
of the Civil Rights Act as a whole. Id. Therefore,
we concluded, "Congress had a narrow view of sex in mind
when it passed the Civil Rights Act." Id. at
1086. In a later case describing Ulane, we said that
at the time of Ulane "we were confident that
Congress had nothing more than the traditional notion of
'sex' in mind when it voted to outlaw sex
discrimination, and that discrimination on the basis of
sexual orientation and transsexualism, for example, did not
fall within the purview of Title VII." Doe by Doe v.
City of Belleville, III, 119 F.3d 563, 572 (7th Cir.
1997) (citing Ulane, 742 F.2d at 1085-86),
abrogated by Oncale v. Sundowner Offshore Sews.,
Inc., 523 U.S. 75 (1998).
Hamner and Spearman, our circuit has,
without exception, relied on those precedents to hold that
the Title VII prohibition on discrimination based on
"sex" extends only to discrimination based on a
person's gender, and not that aimed at a person's
sexual orientation. Muhammad v. Caterpillar, Inc.,
767 F.3d 694, 697 (7th Cir. 2014) (citing the holding in
Spearman, 231 F.3d at 1085); Hamm v. Weyauwega
Milk Products, Inc., 332 F.3d 1058, 1062 (7th
Cir. 2003) ("The protections of Title VII have not been
extended, however, to permit claims of harassment based on an
individual's sexual orientation."); Schroeder v.
Hamilton Sch. Dist., 282 F.3d 946, 951 (7th Cir. 2002)
("Title VII does not, however, provide for a private
right of action based on sexual orientation
district court, relying on Hamner and two district
court cases, thus dismissed Hively's complaint with
prejudice. Hively, 2015 WL 926015, at *3 (citing
Hamner, 224 F.3d at 704 ("harassment based
solely upon a person's sexual preference or orientation
... is not an unlawful employment practice under Title
VII."); Wright v. Porters Restoration, Inc.,
No. 2:09-CV-163-PRC, 2010 WL 2559877, at *4 (N.D. Ind. June
23, 2010) ("To the extent the Plaintiff may be alleging
discrimination based on sexual orientation, the Seventh
Circuit has unequivocally held that this type of
discrimination is not, under any circumstances, proscribed by
Title VII."); and Hamzah v. Woodmans Food Mkt.
Inc., No. 13-CV-491-WMC, 2014 WL 1207428, at *2 (W.D.
Wis. Mar. 24, 2014) ("[t]o the extent [plaintiff] claims
harassment due to his heterosexuality-that is, his sexual
orientation, not his sex-he cannot bring a Title VII claim
against [the defendant] for these alleged instances of
harassment, and the court will dismiss that claim with
presumptively bound by our own precedent in Hamner,
Spearman, Muhammad, Hamm, Schroeder, and Wane.
"Principles of stare decisis require that we give
considerable weight to prior decisions of this court unless
and until they have been overruled or undermined by the
decisions of a higher court, or other supervening
developments, such as a statutory overruling."
Santos v. United States, 461 F.3d 886, 891 (7th Cir.
2006). Our precedent has been unequivocal in holding that
Title VII does not redress sexual orientation discrimination.
That holding is in line with all other circuit courts to have
decided or opined about the matter. See e.g., Vickers v.
Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006)
(perceived sexual orientation and sexual harassment claim);
Medina v. Income Support Div., New Mexico, 413 F.3d
1131, 1135 (10th Cir. 2005); Bibby v. Phila. Coca Cola
Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001);
Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000);
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d
252, 259 (1st Cir. 1999); Hopkins v. Bait. Gas &
Elec. Co., 77 F.3d 745, 751-52 (4th Cir. 1996) (noting
in a case of same-sex harassment that Title VII does not
protect against discrimination based on sexual orientation);
U.S. Dep't of Hous. & Urban Dev. v. Fed. Labor
Relations Auth., 964 F.2d 1, 2 (D.C. Cir. 1992)
(assuming without deciding that Title VII does not cover
sexual orientation discrimination); Williamson v. A.G.
Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir.
1989); Blum v. Gulf Oil Corp., 597 F.2d 936, 938
(5th Cir. 1979); but see Rene v. MGM Grand Hotel,
Inc., 305 F.3d 1061, 1068 (9th Cir. 2002) (gay male
employee taunted and harassed by coworkers for having
feminine traits successfully pleaded claim of sex harassment
under Title VII).
holdings and those of other courts reflect the fact that
despite multiple efforts, Congress has repeatedly rejected
legislation that would have extended Title VII to cover
sexual orientation. Moreover, Congress has not acted to amend
Title VII even in the face of an abundance of judicial
opinions recognizing an emerging consensus that sexual
orientation in the workplace can no longer be tolerated.
See, e.g., Vickers, 453 F.3d at 764-65 ("While
the harassment alleged by [the plaintiff] reflects conduct
that is socially unacceptable and repugnant to workplace
standards of proper treatment and civility, [the
plaintiff's] claim does not fit within the prohibitions
of the law); Bibby, 260 F.3d at 265
("Harassment on the basis of sexual orientation has no
place in our society. Congress has not yet seen fit, however,
to provide protection against such harassment.");
Simonton, 232 F.3d at 35 (harassment on the basis of
sexual orientation "is morally reprehensible whenever
and in whatever context it occurs, particularly in the modern
workplace" but "Congress's refusal to expand
the reach of Title VII is strong evidence of congressional
intent in the face of consistent judicial decisions refusing
to interpret "sex" to include sexual
orientation."); Hig-gins, 194 F.3d at 259
(harassment because of sexual orientation "is a noxious
practice, deserving of censure and opprobrium" but not
proscribed by Title VII); Rene, 243 F.3d at 1209,
(Hug, J., dissenting) (same); Kay v. Indep. Blue
Cross, 142 F.App'x 48, 51 (3d Cir. 2005) (finding
sexual orientation discrimination to be
"reprehensible" but not actionable under Title
VII); Silva v. Sifflard, No. 99-1499, 2000 WL
525573, *1 (1st Cir. Apr. 24, 2000) ("Although we do not
condone harassment on the basis of perceived sexual
orientation, it is not, without more, actionable under Title
VII."); Christiansen v. Omnicom Grip., Inc.,
No. 15 CIV. 3440, 2016 WL 951581, at *12 (S.D.N.Y. Mar. 9,
2016) (finding the conduct "reprehensible, " but
not cognizable under Title VII). See also Ulane, 742
F.2d at 1084 ("While we do not condone discrimination in
any form, we are constrained to hold that Title VII does not
protect transsexuals, and that the district court's order
on this count therefore must be reversed for lack of
jurisdiction."). In short, Congress' failure to act
to amend Title VII to include sexual orientation is not from
want of knowledge of the problem. And as a result, our
understanding in Ulane that Congress intended a very
narrow reading of the term "sex" when it passed
Title VII of the Civil Rights Act, so far, appears to be
overcome a motion to dismiss, Hively's complaint must
contain sufficient factual matter, accepted as true, to
"state a claim to relief that is plausible on its
face." Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). In this case, Hively fails to thwart the motion to
dismiss for the simple reason that this circuit has
undeniably declared that claims for sexual orientation are
not cognizable under Title VII. Nor are they, without more,
cognizable as claims for sex discrimination under the same
could end the discussion there, but we would be remiss not to
consider the EEOC's recent decision in which it concluded
that "sexual orientation is inherently a 'sex-based
consideration/ and an allegation of discrimination based on
sexual orientation is necessarily an allegation of sex
discrimination under Title VII." Baldwin v.
Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641, at
*5, *10 guly 16, 2015). The EEOC, the body charged with
enforcing Title VII, came to this conclusion for three
primary reasons. First, it concluded that "sexual
orientation discrimination is sex discrimination because it
necessarily entails treating an employee less favorably
because of the employee's sex." Id. at
""5 (proffering the example of a woman who is
suspended for placing a photo of her female spouse on her
desk, and a man who faces no consequences for the same act).
Second, it explained that "sexual orientation
discrimination is also sex discrimination because it is
associational discrimination on the basis of sex, " in
which an employer discriminates against lesbian, gay, or
bisexual employees based on who they date or marry.
Id. at *6-7. Finally, the EEOC described sexual
orientation discrimination as a form of discrimination based
on gender stereotypes in which employees are harassed or
punished for failing to live up to societal norms about
appropriate masculine and feminine behaviors, mannerisms, and
appearances. Id. In coming to these conclusions, the
EEOC noted critically that "courts have attempted to
distinguish discrimination based on sexual orientation from
discrimination based on sex, even while noting that the
"borders [between the two classes] are ...
imprecise." Id. at ""8 (quoting
Simon-ton, 232 F.3d at 35). The EEOC rejected the
argument that the plain language of Title VII, along with
Congressional inaction, mandated a conclusion that Title VII
does not prohibit such discrimination. Instead, the EEOC
noted that even the Supreme Court, when applying Title
VII's prohibition on "sex" discrimination to
same-sex sexual harassment, stated that "statutory
prohibitions often go beyond the principal evil to cover
reasonably comparable evils, and it is ultimately the
provisions of our laws rather than the principal concerns of
our legislators by which we are governed."
Oncale, 523 U.S. at 79.
July 2015 EEOC decision is significant in several ways. It
marks the first time that the EEOC has issued a ruling
stating that claims for sexual orientation discrimination are
indeed cognizable under Title VII as a form of sex
discrimination. Although the holding in Baldwin
applies only to federal government employees, its reasoning
would be applicable in private employment contexts too. And
although the rulings of the EEOC are not binding on this
court, they are entitled to some level of deference.
Griggs v. Duke Power Co., 401 U.S. 424, 433-34
(1971); Gibson v. Brown, 137 F.3d 992, 995-96 (7th
Cir. 1998), vacated, W. v. Gibson, 527 U.S.
212 (1999). Based on our holding today, which is counter to
the EEOC's holding in Baldwin, we need not delve
into a discussion of the level of deference we owe to the
EEOC's rulings. Whatever deference we might owe to the
EEOC's adjudications, we conclude for the reasons that
follow, that Title VII, as it stands, does not reach
discrimination based on sexual orientation. Although we
affirm our prior precedents on this point, we do so
acknowledging that other federal courts are taking heed of
the reasoning behind the EEOC decision in Baldwin.
As we will discuss further below, the district courts, which
are the front line experimenters in the laboratories of
difficult legal questions, are beginning to question the
doctrinaire distinction between gender non-conformity
discrimination and sexual orientation discrimination and
coming up short on rational answers.
process of concluding, after thorough analysis, that
allegations of discrimination on the basis of sexual
orientation necessarily state a claim of discrimination on
the basis of sex, the EEOC criticized courts-and pointed
particularly to this circuit-that "simply cite earlier
and dated decisions without any additional analysis"
even in light of the relevant intervening Supreme Court law.
Baldwin, 2015 WL 4397641, at ""8 n.11.We
take to heart the EEOC's criticism of our circuit's
lack of recent analysis on the issue. Moreover, recent legal
developments and changing workplace norms require a fresh
look at the issue of sexual orientation discrimination under
Title VII. We begin, therefore, with that intervening Supreme
Court case- Price Waterhouse v. Hopkins, 490 U.S.
228, 251 (1989) -and discuss its implication for
distinguishing between gender non-conformity claims, which
are cognizable under Title VII, and sexual orientation
claims, which are not. See Hamm, 332 F.3d at 1065
back as 1989, the Supreme Court declared that Title VII
protects employees who fail to comply with typical gender
stereotypes. Price Waterhouse, 490 at 251. In
Price Wa-terhouse, when Ann Hopkins failed to make
partner in the defendant accounting firm, the partners
conducting her review advised her that her chances could be
improved the next time around if she would, among other
gender-based suggestions, "walk more femininely, talk
more femininely, dress more femininely, wear make-up, have
her hair styled, and wear jewelry." Id. at 235.
The Supreme Court declared that this type of gender
stereotyping constituted discrimination on the basis of sex
in violation of Title VII, stating,
[a]s for the legal relevance of sex stereotyping, we are
beyond the day when an employer could evaluate employees by
assuming or insisting that they matched the stereotype
associated with their group, for in forbidding employers to
discriminate against individuals because of their sex,
Congress intended to strike at the entire ...