By Joy P. Waltemath, J.D. In a decision that invites the Supreme Court and Congress to address what the Seventh Circuit called out as the illogical result of denying sexual orientation discrimination claims under Title VII but allowing nearly indistinguishable gender non-conformity claims, the appeals court forced the issue by affirming the dismissal of a part-time adjunct professor’s Title VII claim for sexual orientation discrimination. The college’s defense in both the district court and on appeal was simply that Title VII does not apply to claims of sexual orientation discrimination and therefore she had filed a claim for which there is no legal remedy (Hively v. Ivy Tech Community College, July 28, 2016, Rovner, I.). Gender nonconformity is not enough. The opinion exhaustively addresses precedent and in particular highlights the dilemma facing district courts in addressing the distinction between gender non‐conformity discrimination and sexual orientation discrimination and asking “whether the sexual orientation‐denying emperor of Title VII has no clothes.” Disentangling gender stereotyping from sexual orientation discrimination may be difficult, said the Seventh Circuit, but case law demonstrates it is not impossible. As such, the court pointed out the state of legal affairs is this: “a somewhat odd body of case law that protects a lesbian who faces discrimination because she fails to meet some superficial gender norms—wearing pants instead of dresses, having short hair, not wearing make-up— but not a lesbian who meets cosmetic gender norms, but violates the most essential of gender stereotypes by marrying another woman. We are left with a body of law that values the wearing of pants and earrings over marriage.” Constitutional jurisprudence hasn’t addressed the gap. The Seventh Circuit reiterated that none of the recent Supreme Court decisions addressing the constitutional rights of gays and lesbians “directly impacts the statutory interpretations of Title VII.” But the appeals court pointed out the “paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.” Why not associational discrimination? Further, the appeals court called out the way associational discrimination claims have been determined under Title VII, which protects from discrimination a white woman who is fired for romantically associating with an African‐American man. “[L]ogically it should also protect a woman who has been discriminated against because she is associating romantically with another woman, if the same discrimination would not have occurred were she sexually or romantically involved with a man. … that is, after all, the very essence of sexual orientation discrimination. It is discrimination based on the nature of an associational relationship—in this case, one based on gender.” Silence from Supreme Court, Congress. Despite Price Waterhouse and Oncale, despite Obergefell, the Supreme Court “made no mention of the stigma and injury that comes from excluding lesbian, gay, and bisexual persons from the workforce or subjecting them to un‐remediable harassment and discrimination,” stressed the Seventh Circuit. “In addition to the Supreme Court’s silence, Congress has time and time again said “no,” to every attempt to add sexual orientation to the list of categories protected from discrimination by Title VII.” In conclusion, the Seventh Circuit wrote this: “It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it, and this court undoubtedly does not condone it …. But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent, and therefore, the decision of the district court is AFFIRMED.”
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