Recent Developments in Employment Law: Due Process & Is "Sex" the Same as "Sexual Orientation"?

1. 2017 UMAA Spring ConferenceRecent Developments in Employment Law:What Process is Due?&Is “Sex” the Same as “Sexual Orientation”? Presented By Jonathan Pappasideris Senior City Attorney, Salt Lake City Corporation

2. Topic Overview • Recent Utah Case Law on Public Employee Due Process and Discipline • Taylorsville City v. Taylorsville City Employee Appeal Board 298 P.3d 1270 (Utah Ct. App. 2013) • Larsen v. Davis County 324 P.3d 641 (Utah Ct. App. 2014) • Salt Lake City Corporation v. Gallegos 377 P.3d 185 (Utah Ct. App. 2016) • West Valley City v. Coyle 380 P.3d 327 (Utah Ct. App. 2016) • The Seventh Circuit on Title VII - “SexDiscrimination” Reinterpreted • Hively v. Ivy Tech Community College of Indiana 853 F.3d 339 (7th Cir. 2017)

3. Recent Utah Case Law onPublic Employee Due Process and Discipline Foundational Principles • Utah Municipal Code §§ 10-3-1105 and -1106 § 10-3-1105 • “[E]ach employee of a municipality shall hold employment without limitation of time, being subject to discharge, suspension of over two days without pay, or involuntary transfer to a position with less remuneration only as provided in Section 10-3-1106.” § 10-3-1105(1)(a) (emphasis added). • “[I]f the discharge or involuntary transfer is the result of a layoff or reorganization,” the procedures described in Section 10-3-1106 do not apply. § 10-3-1105(1)(b). • The procedures described in Section 10-3-1106 do not apply to certain types of employees. § 10-3-1105(2)(a)–(e).

4. Recent Utah Case Law onPublic Employee Due Process and Discipline § 10-3-1106 • “If [a covered] employee . . . is discharged, suspended for more than two days without pay, or involuntarily transferred from one position to another with less remuneration for any disciplinary reason, the employee may . . . appeal the final decision to discharge, suspend without pay, or involuntarily transfer to an appeal board or hearing officer established under Subsection (7).” § 10-3-1106(2)(a). • “Upon receipt of the referral from the municipal recorder, the appeal board or hearing officer shall schedule a hearing to take and receive evidence and fully hear and determine the matter which relates to the reason for the discharge, suspension, or transfer.” § 10-3-1106(3)(b)(ii) (emphasis added). • “An employee who is the subject of the discharge, suspension, or transfer may: (i) appear in person and be represented by counsel; (ii) have a hearing open to the public; (iii) confront the witness whose testimony is to be considered; and (iv) examine the evidence to be considered by the appeal board.” § 10-3-1106(4)(a). • “The method and manner of choosing a hearing officer or the members of the appeal board, the number of members, the designation of a hearing officer’s or appeal board member’s term of office, and the procedure for conducting an appeal and the standard of review shall be prescribed by the governing body of each municipality by ordinance.” § 10-3-1106(7)(a).

5. Recent Utah Case Law onPublic Employee Due Process and Discipline • Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) • If an employee has a property interest in their employment, the employee cannot be deprived of that interest “except pursuant to constitutionally adequate procedures.” 470 U.S. at 541. • In other words, a municipal employee’s property interest in their continued employment can only be impaired if the core requirements of due process (notice and an opportunity to be heard) are satisfied. • Fierro v. Park City Municipal Corporation, 295 P.3d 696 (Utah Ct. App. 2012) • “The statute that establishes an appeal process for a terminated municipal employee contemplates that the employee be given formal notice of the reasons for his termination. Further, due process requires that a governmental agency provide notice to a terminated employee of the reasons for his termination. Such notice is critical to the employee having an opportunity to effectively appeal the termination decision. Additionally, any statutorily-authorized appeal board reviewing an agency’s termination decision must consider only those allegations formally communicated to the employee in the termination documentation provided to the employee.” 295 P.3d at 703-04 (emphasis added).

6. Taylorsville City v. Taylorsville City Employee Appeal Board (Silence is Golden. Or Is It?) Case Background • Police officer is terminated in connection with an Internal Affairs investigation of his conduct in two separate incidents (the “pornography incident” and the “intoxication incident”). Specifically, the Police Chief determined the officer violated three policies: 1) “Misrepresentation and Obstructing an IA Investigation,” based on the officer’s dishonesty during the investigation of his conduct; 2) “Attention to Duty,” based on the “pornography incident;” and 3) “Private Life, Public Discredit, Equipment Damage,” based on the “intoxication incident. • Officer appeals and Appeal Board overturns the Police Chief’s termination decision. • At the time of the officer’s termination, Taylorsville City had not adopted, pursuant to § 10-3-1106(7)(a), an ordinance prescribing the standard of review to be used by its appeal board in evaluating appeals of disciplinary actions. As such, the appeal board set its own standard of review, which appeared to afford no deference to the Police Chief’s decision.

7. Taylorsville City v. Taylorsville City Employee Appeal Board (Silence is Golden. Or Is It?) A Review of Standards of Review (Court of Appeals vs. Appeal Board) Court of Appeals • The Court of Appeals reviews the decisions of municipal appeal boards “on the record” and is limited to determining whether the appeal board abused its discretion or exceeded its authority. • The Court of Appeals must affirm the decision of a municipal appeal board unless the decision “exceeds the bounds of reasonableness and rationality.” • However, if a municipal appeal board’s decision implicates due process, the Court of Appeals employs a correctness standard, with no deference given to the appeal board’s determination of whether the requirements of due process were satisfied.

8. Taylorsville City v. Taylorsville City Employee Appeal Board (Silence is Golden. Or Is It?) A Review of Standards of Review (Court of Appeals vs. Appeal Board) Appeal Board • § 10-3-1106 does not provide what standard of review a municipal appeal board must use in reviewing a disciplinary decision. • In circumstances where a municipality fails to prescribe the standard of review for its appeal board via ordinance, the default is “substantial evidence” for factual findings (i.e. do the facts support the charges leveled against the employee) and “abuse of discretion” with respect to the sanction imposed (i.e. is the discipline proportional to the offense).

9. Taylorsville City v. Taylorsville City Employee Appeal Board (Silence Is Golden. Or Is It?) Lessons Learned • If a municipality fails to prescribe a standard of review for its appeal board, the default standard as articulated by the Court of Appeals (substantial evidence for factual findings and abuse of discretion for the sanction imposed) is favorable. • Afford due process by ensuring that employees are provided adequate notice of the allegations against them. Here, the Police Department had a policy stating that “[p]rior to any formal interview of an accused member as part of an [IA] investigation, members will be given written notification of the allegations. . . .” However, despite this clear policy language, the Police Department’s practice was to provide the officer with written notice of the allegations against them immediately prior to the IA interview and, further, in this case, the officer was simply told that the investigation involved “standards of conduct” with no additional detail or description. Although not fatal here because the municipality was able to demonstrate that the officer had actual notice that he could be terminated for being untruthful during the IA investigation, different facts could lead to a different outcome. • However, a municipality is not prohibited from disciplining an employee for violations that it learns about from the employee in the course of a pre-determination hearing. For example, “if an officer revealed information indicating inappropriate conduct of which the Department was unaware before the interview, the officer [is not] immune from disciplinary action.”

10. Larsen v. Davis County(Are Bygones Always Bygones?) Case Background • Assistant County Attorney is terminated for attempting to obtain a criminal conviction by knowingly using tainted eyewitness testimony in a robbery trial and then not correcting the record when he had an opportunity to do so, which resulted in a mistrial. • Assistant County Attorney had, on a prior occasion, misled a judge and the County Attorney and this previous incident was discussed during the Assistant County Attorney’s pre-disciplinary hearing. • In the termination letter, the County Attorney noted that the Assistant County Attorney’s explanation that his behavior at the robbery trial was unknowing and based on ignorance lacked credibility due to his past history of misrepresentations. However, the County Attorney emphasized that his termination decision was based solely on the Assistant County Attorney’s misconduct at the robbery trial.

11. Larsen v. Davis County(Are Bygones Always Bygones?) A Refresher on Pre-Termination Due Process • In determining whether Davis County afforded sufficient pre-termination due process to the Assistant County Attorney, the Court of Appeals reiterated that “[d]ue process . . . is flexible and requires such protections as the particular situation demands.” Simply put, the “root requirement of the Due Process Clause is that ‘an individual be given an opportunity for a hearing before he is deprived of any significant property interest.’” • “Some form of pretermination hearing,” where the employee can present their side of the story, is required. However, while necessary, a pre-termination hearing “need not be elaborate” and its “essential requirements” consist of “notice and an opportunity to respond” (i.e. “the opportunity to present reasons, either in person or in writing, why [the] proposed action should not be taken”). • Thus, a “tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.”

12. Larsen v. Davis County(Are Bygones Always Bygones?) What Constitutes Sufficient “Notice of Charges”? Hugoe v. Woods Cross City, 316 P.3d 979 (Utah Ct. App. 2013), Revisited • In Hugoe, the employee received a pre-termination notice that the municipality was considering discipline based on various policy violations (including threatening co-workers, insubordination, misusing property, and using vulgar language). However, the notice did not mention the employee’s history of prior discipline. • Court of Appeals determined that, even though the employee’s history of prior discipline was omitted from the pre-termination notice but referenced in the actual termination letter, the termination decision was appropriate because the employee’s behavior in connection with the primary incident at issue, standing alone, was enough to justify termination. • Relying on Hugoe, Court of Appeals determined that County Attorney’s reference to Assistant County Attorney’s past discipline in termination letter was harmless because County Attorney explicitly made clear that “your misconduct during this trial and preparation are self-evident and alone require this termination action.”

13. Larsen v. Davis County(Are Bygones Always Bygones?) Lessons Learned • As a bulwark against due process challenges based on inadequate notice, reference an employee’s past disciplinary history in the pre-termination hearing notice. • This is particularly key in progressive discipline cases, where disciplinary action is based on a pattern of conduct as opposed to a single serious incident. • Give the employee the opportunity to respond to the present allegation and, if the disciplinary decision will be based (in whole or in part) on past acts, alert the employee in the pre-termination hearing notice that their job history is at issue and may form the basis for the ultimate decision.

14. Salt Lake City Corporation v. Gallegos(Why Words Matter) Case Background • Police officer (the president of a local labor union and, as such, a board member of a national labor union) was terminated for failing to reimburse the local union for travel expenses it had paid on his behalf and for which he was reimbursed by the national union. • In his termination letter, Police Chief bases the officer’s termination on violation of three Department policies: 1) “Obligation to Abide by the Law;” 2) “Conduct Unbecoming;” and 3) “Core Values – Integrity.” • However, in the termination letter, the Police Chief explicitly stated that all three policy violations were premised on the same conduct – “knowingly receiving and processing instruments of payment from [the national union]” and “keeping the funds for his personal use.” The Police Chief further emphasized that, by intentionally and knowingly taking money to which he was not entitled, the officer had “therefore committed a theft.” • Two of the three policies the officer was deemed to have violated (“Conduct Unbecoming” and “Core Values – Integrity”) do not require either criminal intent or proof of a violation of the law as a prerequisite.

15. Salt Lake City Corporation v. Gallegos(Why Words Matter) Standard of Review • In reviewing a disciplinary decision, an appeal board’s review “is limited by the scope of the termination notice” and the appeal board “may consider only the misconduct identified in the notice as the basis for the termination decision.” This “four corners review” is required because employees “have a due process right to adequate notice of the reasons for their discharge so that they can meaningfully prepare for and participate in the municipal appeal board hearing.” • Although Salt Lake City argued that requiring it to prove the elements of the crime of theft was inappropriate, the Court of Appeal disagreed, citing the language of the Police Chief’s termination letter. • “Because the police chief framed the allegations against [the officer] as a theft, the Commission’s review was limited to the question of whether there was evidence to support a finding that [the officer] had committed a theft.” Further, “to allow the City to support [the officer’s] termination with evidence of merely accidental or negligent mishandling of money” is “a very different allegation from the knowing theft identified by the police chief as the basis” for termination. • Because the officer was only notified of the need to prepare a defense to an allegation of theft, allowing Salt Lake City to “attempt to justify [the officer’s] termination on the basis of different, less culpable conduct . . . would be to move the goalposts while the ball is in the air.”

16. Salt Lake City Corporation v. Gallegos(Why Words Matter) A Look on the Bright Side • Court of Appeals reversed the appeal board’s determination because it applied the wrong standard of review of the Police Chief’s termination decision. Specifically, the appeal board concluded that there was “substantial and significant evidence in the record . . . to conclude [the officer] made, at most, an honest and genuine mistake regarding his acceptance of the funds in question.” This was the wrong inquiry. • The relevant inquiry “was not whether there was substantial evidence to justify exonerating [the officer], but rather, whether there was substantial evidence in the record to support the police chief’s conclusion that [the officer] engaged in the conduct for which he was terminated.” (emphasis added). • Court of Appeals again emphasized that an appeal board must “give deference to a police chief’s advantaged position” in evaluating disciplinary decisions and must review the decision for “substantial evidence with respect to findings of fact and abuse of discretion with respect to the discipline selected.” • The key question is “whether the evidence supports the police chief’s findings, not whether there is evidence in the record that would support a contrary finding.” (emphasis added). • What is “substantial evidence”? • A “quantum and quality of relevant evidence that is adequate to convince a reasonable mind to support a conclusion. It is more than a mere ‘scintilla’ of evidence and something less than the weight of the evidence.”

17. West Valley City v. Coyle(Speak Now or Forever Hold Your Peace)(The Perils of Comparison Shopping) Case Background • Lieutenant in charge of Police Department narcotics unit is demoted two ranks to patrol officer following an investigation of the unit (which was subsequently disbanded) in the wake of allegations raised as the result of an officer-involved shooting. • Lieutenant, sergeant, and 6 detectives from the former narcotics unit are investigated for misconduct. Lieutenant is demoted two ranks for violation of four policies: 1) “Supervisor Responsibility;” 2) “Conduct;” 3) “Property Handling;” and 4) “Blue Team Software.” Primary reason for demotion was “failure to provide proper supervision and accountability to detectives assigned to the [unit],” which resulted in “detectives not properly investigating and documenting activities.” • Lieutenant had positive performance reviews and commendations, and only prior disciplinary action was a letter of reprimand relating to a traffic accident. • Other Individuals Also Disciplined • Sergeant (who had previous 40-hour suspension) = 80-hour suspension • 1 Detective (who had a previous letter of reprimand) = 40-hour suspension • 4 Detectives (all of whom had prior discipline) = Letters of reprimand

18. West Valley City v. Coyle(Speak Now or Forever Hold Your Peace)(The Perils of Comparison Shopping) Appeal Board Reverses Demotion Decision • Appeal board concludes that substantial evidence supported the Police Chief’s contention that the Lieutenant violated the 4 policies at issues, but determines that sanction of two-level demotion was disproportionate to the conduct at issue. Court of Appeals Affirms and Reiterates Proportionality/Consistency Analysis • Standard of Review • Appeal board’s factual findings reviewed under “clearly erroneous” standard • Appeal board’s application of law to facts reviewed under “arbitrary and capricious” standard • Appeal board’s legal conclusions reviewed under a “correctness” standard

19. West Valley City v. Coyle(Speak Now or Forever Hold Your Peace)(The Perils of Comparison Shopping) Proportionality vs. Consistency “In determining whether the sanction . . . is warranted, the [appeal board] must affirm the sanction if it is: 1) appropriate to the offense [i.e. proportional] and 2) consistent with previous sanctions imposed by the department [i.e. consistent].” • Proportionality Prong • “There is no single set of factors that must be considered when conducting a proportionality review.” • The factors set forth in Ogden City Corporation v. Harmon, 116 P.3d 973 (Utah Ct. App. 2005) are a useful guideline, but not an absolute requirement. • West Valley City argued that the appeal board improperly substituted its own opinion of the seriousness of the policy violations for the Police Chief’s opinion, but Court of Appeals indicates this is appropriate: • “The [appeal board] was tasked with evaluating the proportionality of [the Lieutenant’s] discipline to his conduct. Part of that review necessarily required the [appeal board] to determine how serious [the Lieutenant’s] violations of departmental policies were. • Appeal board determined that, generally speaking, the Lieutenant’s violations were not serious when viewed in context AND noted Lieutenant’s absence of prior discipline • Appeal board not persuaded that mishandling of evidence led to the dismissal of any criminal cases. • Likewise, appeal board concludes that one of the practices the Lieutenant allowed to occur had been going on for some time, and that the Lieutenant’s supervisor was aware of the practice (which had existed prior to the Lieutenant taking over the narcotics unit). Moreover, the Police Department did not explicitly override the practice even after the investigation had commenced.

20. West Valley City v. Coyle(Speak Now or Forever Hold Your Peace)(The Perils of Comparison Shopping) • Consistency Prong • Burden of establishing inconsistency is on employee challenging the disciplinary decision. • However, “case law does not require comparison to identically situated employees but instead only to ‘similarly situated employees.”” • Although West Valley City argued that the sergeant and the detectives investigated were not valid comparables (and, thus, the discipline they received was irrelevant in determining the appropriateness of the Lieutenant’s sanction), the Court of Appeals disagreed. • “We, too, recognize that a police chief may – and perhaps should – discipline a lieutenant more severely than the officers the lieutenant supervises, as more is expecte of employees in leadership positions.” • However, “[u]nder the circumstances, with other members of the [unit] being accused of the same conduct as [the Lieutenant], they were similar enough to warrant comparison, albeit with some factoring of the differences in rank and disciplinary history.”

21. West Valley City v. Coyle(Speak Now or Forever Hold Your Peace)(The Perils of Comparison Shopping) Lessons Learned • If confronted with evidentiary ruling that excludes critical evidence, must proffer (on the record) what the excluded evidence would show. • Failure to proffer renders it impossible for the Court of Appeals to determine if the exclusion of evidence was prejudicial. • “But our hands are tied in evaluating whether the [appeal board] might have decided differently if it had heard the excluded evidence because the City made no proffer as to what the excluded evidence would establish.” • Remember that, in evaluating whether the elements of proportionality and consistency have been met, the Court of Appeals “does not directly review the Police Chief’s decision for proportionality and consistency; instead, we review the [appeal board’s] determination and do so only to remedy any abuse of discretion on its part.”

22. The Seventh Circuit on Title VII – “Sex Discrimination” Reinterpreted Hively v. Ivy Tech Community College of Indiana 853 F.3d 339 (7th Cir. 2017) (Decided April 4, 2017) Case Background • Hively (who is “openly lesbian”) began teaching as a part-time adjunct professor at Ivy Tech’s South Bend, Indiana campus in 2000. • Hively unsuccessfully applies for at least 6 full-time teaching positions at Ivy Tech between 2009 and 2014. • In July 2014, Ivy Tech elects not to renew her part-time teaching contract. • Hively files a pro se Charge of Discrimination with the EEOC, which simply states: “I believe I am being discriminated against based on my sexual orientation. I believe I have been discriminated against and that my rights under Title VII of the Civil Rights Act of 1964 were violated.” (emphasis added)

23. The Seventh Circuit on Title VII – “Sex Discrimination” Reinterpreted District Court Dismisses • After receiving a right-to-sue letter, Hively (again pro se) files suit in the U.S. District Court for the Northern District of Indiana. • Ivy Tech responds with Motion to Dismiss under Rule 12(b)(6), arguing that “sexual orientation” is not a protected class under Title VII. District Court agrees and dismisses Hively’s case with prejudice. Hively Appeals to the Seventh Circuit • Hively (now represented by counsel) appeals and argues that discrimination on the basis of “sexual orientation” is a form of “sex” discrimination and, as such, is prohibited by Title VII. • Seventh Circuit Panel Affirms District Court’s Dismissal. • Decision authored by Judge Rovner, joined by Senior Judges Bauer and Ripple. • Hively petitions for en banc review by entire Court, and petition is granted.

24. The Seventh Circuit on Title VII – “Sex Discrimination” Reinterpreted What is the Seventh Circuit? • The federal court of appeals tasked with hearing cases arising out of federal courts in Illinois, Indiana, and Wisconsin. Who Heard the Case En Banc? • 11 Judges • Chief Judge Diane P. Wood (66 years old; Clinton Appointee) • Senior Judge William J. Bauer (90 years old; Ford Appointee) – On Initial Panel • Judge Richard A. Posner (77 years old; Reagan Appointee) • Judge Joel M. Flaum (80 years old; Reagan Appointee) • Judge Frank H. Easterbrook (68 years old; Reagan Appointee) • Senior Judge Kenneth F. Ripple (74 years old; Reagan Appointee) – On Initial Panel • Judge Michael S. Kanne (78 years old; Reagan Appointee) • Judge Ilana D. Rovner (78 years old; Bush I Appointee) – On Initial Panel and Authored Decision • Judge Ann C. Williams (67 years old; Clinton Appointee) • Judge Diane S. Sykes (59 years old; Bush II Appointee) • Judge David F. Hamilton (59 years old, Obama Appointee)

25. The Seventh Circuit on Title VII – “Sex Discrimination” Reinterpreted 8-3 En Banc Ruling Reversing Initial Panel Decision and Holding that “Discrimination on the Basis of Sexual Orientation is a Form of Sex Discrimination” • 4 Separate Opinions • Majority Opinion (5 Judges) • Authored by Chief Judge Wood (Clinton Appointee) • Joined by Judge Easterbrook (Reagan Appointee), Judge Rovner (Bush I Appointee and Author of Initial Panel Decision), Judge Williams (Clinton Appointee), and Judge Hamilton (Obama Appointee) • Concurring Opinion (1 Judge Joins the Majority but Advocates Alternative Analytical Approach) • Authored by Judge Posner (Reagan Appointee) • Concurring Opinion (2 Judges Join the Majority as to Parts I and II) • Authored by Judge Flaum(Reagan Appointee) • Joined by Senior Judge Ripple (Reagan Appointee and on Initial Panel) • Dissenting Opinion (3 Judges) • Authored by Judge Sykes (Bush II Appointee) • Joined by Senior Judge Bauer (Ford Appointee and on Initial Panel) and Judge Kanne (Reagan Appointee)

26. The Seventh Circuit on Title VII – “Sex Discrimination” Reinterpreted Majority Opinion • Title VII of the Civil Rights Act of 1964 makes it unlawful for covered employers to discriminate on the basis of “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). • Congress has never amended Title VII to include “sexual orientation” as an additional protected class. • Supreme Court has never opined on whether Title VII prohibits discrimination based on sexual orientation and all circuit courts of appeal that have considered the issue have concluded “sexual orientation” is not a protected class under Title VII. • Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999) • Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005) • Prowel v. Wise Business Forms, Inc., 579 F.3d 285 (3d Cir. 2009) • Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138 (4th Cir. 1996) • Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979) • Kalich v. AT&T Mobility, LLC, 679 F.3d 464 (6th Cir. 2012) • Hamner v. St. Vincent Hospital and Health Care Center, Inc., 224 F.3d 701 (7th Cir. 2000) • Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69 (8th Cir. 1989) • Medina v. Income Support Division, 413 F.3d 1131 (10th Cir. 2005) • Fredette v. BVP Management Associates, 112 F.3d 1503 (11th Cir. 1997)

27. The Seventh Circuit on Title VII – “Sex Discrimination” Reinterpreted Majority Opinion • “In light of the importance of the issue, and recognizing the power of the full court to overrule earlier decisions and to bring our law into conformity with the Supreme Court’s teachings, a majority of the judges on regular active service voted to rehear this case en banc.” • Question Presented – Not a Reinterpretation of Title VII, But an Analysis of the Meaning of “Sex” Discrimination • “The question before us is not whether this court can, or should, ‘amend’ Title VII to add a new protected category to the familiar list. . . . Obviously that lies beyond our power. We must decide instead what it means to discriminate on the basis of sex, and in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex. This is a pure question of statutory interpretation and thus well within the judiciary’s competence.” (emphasis added). • Legislative History Deemed Unhelpful • “Ivy Tech sets great store on the fact that Congress has frequently considered amending Title VII to add the words ‘sexual orientation’ to the list of prohibited characteristics, yet it has never done so. Many of our sister circuits have also noted this fact. In our view, however, it is simply too difficult to draw a reliable inference from these truncated legislative initiatives to rest our opinion on them. The goalposts have been moving over the years, as the Supreme Court has shed more light on the scope of the language that already is in the statute: no sex discrimination.” • “In the end, we have no idea what inference to draw from congressional inaction or later enactments, because there is no way of knowing what explains each individual member’s votes, much less what explains the failure of the body as a whole to change this 1964 statute.”

28. The Seventh Circuit on Title VII – “Sex Discrimination” Reinterpreted Majority Opinion • Supreme Court Jurisprudence in Related Areas Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) (deeming male-on-male sexual harassment actionable as sex discrimination) • “We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But 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.” • “Title VII prohibits ‘discrimination . . . because of . . . sex’ in the ‘terms’ or ‘conditions’ of employment [and] [o]ur holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.” Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986) (deeming sexual harassment a form of “sex” discrimination prohibited by Title VII) Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (deeming “sex stereotyping” actionable as sex discrimination under Title VII)

29. The Seventh Circuit on Title VII – “Sex Discrimination” Reinterpreted Majority Opinion • Comparative Method Utilized to Determine if Hively Described a Situation Where, Holding All Other Factors Constant But Changing Her Sex, She Would Have Been Treated the Same Way • In other words, the applicable hypothetical is if Hively had been a man, but everything else (including the fact her partner is female) remained unchanged. • The issue is whether Ivy Tech disadvantaged Hively because she is a woman, as opposed to a lesbian. • Majority Says “Yes” • “Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual. Our panel described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all.” • “Hively’s claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, or policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man).” • “No matter which category is involved, the essence of the claim is that the plaintiff would not be suffering the adverse action had his or her sex, race, color, national origin, or religion been different.”

30. The Seventh Circuit on Title VII – “Sex Discrimination” Reinterpreted Majority Opinion • Other Supreme Court Decisions Inform the Analysis • “Today’s decision must be understood against the backdrop of the Supreme Court’s decisions, not only in the field of employment discrimination, but also in the area of broader discrimination on the basis of sexual orientation.” • Romer v. Evans, 517 U.S. 620 (1996) • Lawrence v. Texas, 539 U.S. 558 (2003) • United States v. Windsor, 133 S.Ct. 2675 (2013) • Obergefell v. Hodges, 135 S.Ct. 2584 (2015) • General Conclusion • “[T]his court sits en banc to consider what the correct rule of law is now in light of the Supreme Court’s authoritative interpretations, not what someone thought it meant one, ten, or twenty years ago. The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.”

31. The Seventh Circuit on Title VII – “Sex Discrimination” Reinterpreted Concurring Opinion (Posner) • “3 Flavors of Statutory Interpretation” • Original Meaning (The Plain Language of the Statute) • Unexpressed Intent (“No Vehicles in the Park”) • Judicial Interpretive Updating (“Making Old Law Satisfy Modern Needs and Understandings”) • Argues for Judicial Interpretive Updating of Title VII • Only appropriate where there is “a lengthy interval between [statutory] enactment and (re)interpretation. A statute when passed has an understood meaning; it takes years, often many years, for a shift in the political and cultural environment to change the understanding of the statute.” • “[S]tatutory and constitutional provisions frequently are interpreted on the basis of present need and understanding rather than original meaning.” • Texas v. Johnson, 491 U.S. 397 (1989) (Justice Scalia as decisive fifth vote holding that burning the American flag is First Amendment free speech) “There is no indication that the framers or ratifiers of the First Amendment thought that the word ‘speech’ in the amendment embraced flag burning or other nonverbal methods of communicating.” • Johnson v. United States, 333 U.S. 10 (1948) (creating warrant requirement as a precondition to search of a person’s home) “There is nothing in the amendment about requiring a warrant ever. All that the amendment says about warrants is that general warrants, and warrants that are vague or issued without probable cause, are invalid.”

32. The Seventh Circuit on Title VII – “Sex Discrimination” Reinterpreted Concurring Opinion (Posner) • Justice Oliver Wendell Holmes in Missouri v. Holland, 252 U.S. 416 (1920) • “When we are dealing with words that are also a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. . . . The case before us must be considered in the light of our whole experience and not merely what was said a hundred years ago. We must consider what this country has become in deciding what that amendment has reserved.” (emphasis added by Judge Posner) • Because “today ‘sex’ has a broader meaning than the genitalia you’re born with . . . the position of a woman discriminated against on account of being a lesbian is thus analogous to a woman’s being discriminated against on account of being a woman.” • “The compelling social interest in protecting homosexuals (male and female) from discrimination justifies an admittedly loose ‘interpretation’ of the word ‘sex’ in Title VII to embrace homosexuality: an interpretation that cannot be imputed to the framers of the statute but that we are entitled to adopt in light of (to quote Holmes) ‘what this country has become,’ or, in Blackstonian terminology, to embrace as a sensible deviation from the literal or original meaning of the statutory language.” • “I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted. This is something courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch. We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963-1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught.”

33. The Seventh Circuit on Title VII – “Sex Discrimination” Reinterpreted Concurring Opinion (Judge Flaum, joined by Senior Judge Ripple) • Title VII’s Statutory Text Mandates the Conclusion that “Sexual Orientation” Discrimination is “Sex” Discrimination • “[A]n unlawful employment practice is established when the complaining party demonstrates that . . . sex . . . was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. § 2000e-2(m) (emphasis added). • Thus, “discriminating against [an] employee because they are homosexual constitutes discriminating against an employee because of (A) the employee’s sex, and (B) their sexual attraction to individuals of the same sex. And ‘sex,’ under Title VII, is an enumerated trait.” • Critical inquiry is whether sex was a factor in the employment decision at issue. If it was, even if other factors were present, a claim can be alleged. • “[I]f discriminating against an employee because she is homosexual is equivalent to discriminating against her because she is (A) a woman who is (B) sexually attracted to women, then it is motivated, at least in part, by an enumerated trait: the employee’s sex. That is all an employee must show to successfully allege a Title VII claim.”

34. The Seventh Circuit on Title VII – “Sex Discrimination” Reinterpreted Dissenting Opinion (Judge Sykes, joined by Senior Judge Bauer and Judge Kanne) “A Statutory Amendment Courtesy of Unelected Judges.” • Failure to Adhere to the Plain Language of the Statute • “Respect for the constraints imposed on the judiciary by a system of written law must begin with fidelity to the traditional first principle of statutory interpretation. When a statute supplies the rule of decision, our role is to give effect to the enacted text, interpreting the statutory text as a reasonable person would have understood it at the time of enactment. We are not authorized to infuse the text with a new or unconventional meaning or to update it in response to changed social, economic, or political conditions.” • “Sex” and “Sexual Orientation” are 2 Distinct Concepts • “Because sexual-orientation discrimination is not synonymous with sex discrimination in ordinary usage, Title VII does not prohibit sexual-orientation discrimination.” • Congress proscribes “sexual orientation” discrimination in various statutes, but has not done so in Title VII.