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Wednesday, April 05, 2017

Party control

I have not had a chance to read the en banc Seventh Circuit decision in Hively v. Ivy Tech Comm. College, holding that sexual-orientation discrimination is discrimination "because of sex" under Title VII. This sets up a circuit split with a panel of the Eleventh Circuit. Two broad thoughts, beyond the substance of the Title VII question.

First, Hively sued a community college, a state actor that also could have been sued for an equal protection violation under § 1983, although there is no indication the plaintiff did so (there is a § 1981 claim mentioned, but § 1983). At least in race cases, courts treat the substantive discrimination analysis under Title VII and the Fourteenth Amendment as co-extensive, is all prevent intentional discrimination. So if sexual orientation discrimination is "because of sex" for Title VII, must it also be for constitutional purposes, as well?

Second, there is a lot of discussion of how Hively tees this up for SCOTUS resolution, with focus turning to what the SG and the Bush Administration will do. But Ivy Tech has indicated, at least for now, that it will not seek SCOTUS review, but will go back to the trial court and litigate the factual questions of whether the school discriminated. So note the prospect this potentially creates--a clear circuit split and every ideologically interested person wanting the issue to go to SCOTUS, but no vehicle to pursue the split because the parties controlling the vehicle choose not to do so. SCOTUS should get this issue because the plaintiff from the Eleventh Circuit will seek cert in order to revive her dismissed claim. But the en banc Eleventh Circuit might review the case first and rule consistently with the Seventh Circuit, removing the circuit split. All of which provides reminds us that the power of federal courts (and the SG) often remain subject to the whims, strategies, and preferences of private or non-federal litigants. [Update: The plaintiff in the Eleventh Circuit has petitioned for rehearing en banc].

Posted by Howard Wasserman on April 5, 2017 at 11:55 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


Your link to Hively is a link to a sizable audio file (what of I don't know).

It seems to me it should be easier to argue that sexual-orientation discrimination is gender discrimination in the constitutional context, because gender discrimination there is already pretty unmoored from the text/history of the Fourteenth Amendment (note: this is not a criticism on my part), whereas here the question is whether some specific statutory language that actually goes to sex discrimination forbids sexual-orientation discrimination, when, at least, the language wasn't understood that way when it was enacted. But I suspect that won't be the way this plays out.

Posted by: Asher Steinberg | Apr 5, 2017 12:54:36 PM

> turning to what the SG and the Bush Administration will do

I never thought I'd say this, but we wish.

Posted by: jake | Apr 5, 2017 3:20:00 PM

Another difference is in the constitutional context race claims and sex claims are not treated identically. The statutory language of Title VII treats sex and race identically, and almost every Circuit had already held that a plaintiff who is discriminated against because he/she was in an interracial relationship would still be fired because of his/her race. Those cases treat the "because of" language as including a relational aspect when you can consider the plaintiff's protected class in relationship to someone else. Once that is the precedent, there is no statutory reason not to interpret the "because of" language in Title VII identically for sex, which then covers sexual orientation. I express no opinion on whether the constitution should cover sexual orientation or not for other reasons, but the statutory interpretation argument doesn't require it. I explain the argument more thoroughly here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1999029

Posted by: Victoria Schwartz | Apr 10, 2017 3:27:38 PM

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