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A recent decision of the Seventh U.S. Circuit Court of Appeals, Hively v. Ivy Tech Community College of Indiana, has been widely reported as holding that Title VII of the Civil Rights Act protects employees from discrimination on the basis of sexual orientation. Headlines scream along the lines of
Court holds that Title VII protects gay workers.
We all know that headline writers seek only to gain attention. Those writing for online publications, in particular, must offer
clickbait to generate the hits that enable the publication to generate advertising revenue.
But we should also know that such headlines are rarely accurate. Where the law, or courts’ rulings are concerned, we should be doubly suspicious.
So let’s start by making it clear that the case arose from a dismissal under Rule 12(b)(6) of the Federal Rules of Procedure.
In other words, the Court was not concerned with making a ruling on the substantive merits of Hively’s claims. It was simply determining whether her allegations, if true, stated a claim of sex discrimination.
Yet some of the worst places for infantile comment on legal issues claim to be websites with a serious interest in the law. Comments on the ABA Journal website, for example, provide probably the best argument that the number of practising attorneys should have been drastically limited many years ago.
The petty squabbling and name calling is an appalling sight to behold.
I don’t care whether you are a liberal, a conservative, a libertarian, a socialist, or some other shade of political opinion. If you have any reason to be taken seriously as a lawyer, you should be able to recognize that legal reasoning and analysis is not the same thing as giving vent to those opinions and prejudices.
That is not to deny that politics and policy have a role to play in the law. Of course they do. But, like any other legal factor, they must be appropriately confined.
Most obviously, politics predominate when the legislature or executive is at work, specifically in the passing of legislation and the making and approval of judicial nominations.
So far as courts are concerned, politics and policy may be used to resolve ambiguities and to close gaps in the legal rule-book. They aren’t, however, to be used as a substitute for that rule-book, for that would render the very concept of law utterly meaningless.
So, on that basis, let’s return to Hively and see what the court actually said. Chief Judge Diane Wood’s majority opinion turns out, in fact, to be crystal clear:
[H]as [Hively] described a situation in which, holding all other things constant and changing only her sex, she would have been treated the same way? …
The fundamental question is not whether a lesbian is being treated better or worse than gay men, bisexuals, or transsexuals, because such a comparison shifts too many pieces at once. Framing the question that way swaps the critical characteristic (here, sex) for both the complainant and the comparator and thus obscures the key point — whether the complainant’s protected characteristic played a role in the adverse employment decision. The counterfactual we must use is a situation in which Hively is a man, but everything else stays the same: in particular, the sex or gender of the partner.
Hively alleges that if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her…. This describes paradigmatic sex discrimination.
So the Court didn’t hold that Title VII
protects gay workers. It held that treating a woman less favorably simply because she is a woman is sex discrimination.
That’s not controversial in any way. It’s just trite, black-letter law.
Isn’t it amazing how revealing law can be when we actually take the time to read what it says?