Title VII ruling reflects current values

In Hively v. Ivy Tech, the 7th U.S. Circuit Court of Appeal held that Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating on the basis of sexual orientation - the first federal court of appeal to so hold. But the decision is not a significant departure from past precedent or conventional civil rights jurisprudence. The Equal Employment Opportunity Commission had already taken the position that Title VII prohibits discrimination based in sexual orientation and many courts have held that the law prohibits discrimination based on transgender identity. In a sense, the real surprise is that it took the federal courts as long as they have to reach this sensible and humane conclusion.

Title VII does not expressly prohibit discrimination because of sexual orientation, but as early as the 1970s, gay litigants argued that discrimination because of sexual orientation is a form of sex discrimination: If a man with a female lover enjoys more favorable treatment than a similarly situated woman with a female lover, the reason for the unequal treatment is their sex.

The courts rejected these arguments, pointing out that when Congress passed Title VII in 1964, it did not intend it to apply to gay men and lesbians. Indeed, for just this reasons, gay friendly politicians sponsored the Employment Non-Discrimination Act, which would explicitly prohibit discrimination because of sexual orientation. This legislation has been pending approval in Congress for over a decade, but few expect it to become law anytime soon. So should courts do what Congress will not?

As Judge Richard Posner insisted in his refreshingly frank concurring opinion, courts should interpret statutes in light of current knowledge and values. Nowhere is this more obvious than in the context of sex discrimination, which has always been interpreted in light of practical considerations and contemporary cultural expectations. Sometimes this pragmatic flexibility favors employees, as in Hively; but it often favor employers.

For instance, courts have expanded the narrow statutory exception for jobs for which sex is a bona fide occupational qualification (BFOQ) to account for social mores. Courts have permitted employers to discriminate because of sex for reasons of modesty - for instance, hiring only women for positions that involve undressing and bathing female hospital patients or working in women's restrooms and locker rooms. Some have also allowed employers to discrimination for purposes of sexual titillation; for instance, allowing the Playboy clubs to hire only women to serve as cocktail waitresses. Courts also allow explicitly discriminatory workplace dress codes, provided they are equally burdensome for both sexes, regardless of whether sex is a BFOQ. And some courts are quite lenient with respect to what counts as equally burdensome. For instance, when Reno, Nevada, bartender Darlene Jespersen sued her employer over sex discriminatory grooming standards, the 9th U.S. Circuit Court of Appeals suggested, improbably, that rules requiring women to wear full makeup and teased or styled hair might be no more burdensome than rules requiring men to have short hair and neatly trimmed fingernails.

Similarly, it's unlikely that Congress intended Title VII to prohibit sex harassment - particularly the wide range of actions taken by co-workers that can create a hostile work environment. Yet the prohibition of sex harassment is now an accepted part of the law and has been one of the most important and transformative in modern employment discrimination doctrine. And courts, interpreting the law in light of new information about workplace gender dynamics, prohibited employers from requiring stereotypical gender behavior: After the 1989 Supreme Court opinions in Price Waterhouse v. Hopkins this doctrine became one of the most important guarantees of gender equity in employment.

All of these courts were trying - sometimes skillfully and other times clumsily - to apply the law pragmatically, prohibiting clearly inequitable practices while allowing for deep-seated and widely accepted customs. Admittedly, this means judges have to make some controversial judgment calls. The courts may not always get it right - especially when their decisions are evaluated in hindsight. In a sense, it's inevitable that many decisions of the past look incorrect today because cultural mores and our understanding of the nature of workplace inequity have changed and developed over time. That's why it's necessary for today's courts to revisit the interpretations of past courts, updating them with contemporary knowledge and values.

We've learned a few things about the nature of sex discrimination between 1964 and the today. One of the things we've learned is that gay men and lesbians face discrimination because of overly narrow ideas about how men and women should behave. Moreover, there is probably no topic on which public opinion has changed more in the last 50 years than sexual orientation. In 1964, few gay men and lesbians could afford to be open about their sexuality and as a result the most offensive stereotypes went unchallenged. Today, because of experiences with openly gay friends and colleagues and more sympathetic portrayals in the media, most people understand that, as Judge Posner puts it, "homosexuality is nothing worse than failing to fulfill stereotypical gender roles" - in particular the one that requires intimacy with a member of the opposite sex. It's time for the law to reflect that understanding.

You can find Professor Ford at www.richardthompsonford.com and www.facebook.com/richard.thompson.ford.