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Courts’ sexual harassment interpretations clash

Federal laws against job discrimination assume that having a job is better than not having one.

Most people, whether they regard their work as a soul-satisfying life’s journey or a dreary source of essential income, would agree. It would seem to follow that on-the-job harassment is a lesser harm than being fired or never getting hired at all. At least the victim of harassment is still drawing a paycheck.

And yet, while federal law prohibits sexual harassment against LGBT people, most federal courts conclude that firing people on the basis of their sexuality, or refusing to hire them in the first place, is A-OK. The law, as understood by most federal courts, protects against the lesser harm of harassment but not against the greater harm of exclusion or termination.

It’s a peculiar situation, and this is how it arose. The governing federal statute, Title VII, makes it illegal for employers to discriminate against a person based on the person’s sex. The statute’s text provides no elaboration beyond that single three-letter word, leaving it to the courts to identify what acts count as sex discrimination. The courts agree that sexual harassment counts.

In one case decided almost 20 years ago, a male offshore oil-rig worker was repeatedly threatened with sexual assault by other male workers. His supervisors refused to intervene. Writing for a unanimous U.S. Supreme Court, conservative Justice Antonin Scalia held that same-sex harassment counts as discrimination, too. In line with that authority, the 10th Circuit (which hears federal appeals from New Mexico and neighboring states) has held that a gay employee can recover for harassment inflicted by male co-worker.

But the law governing hiring and firing is different. The 10th Circuit follows the traditional view that “Title VII does not prohibit discrimination based on sexual orientation.” As the wording of that quotation implies, the traditional approach draws a sharp distinction between a person’s sex and his or her sexual orientation, treating those characteristics as entirely separate and independent. In the traditional view, discrimination based on sex belongs in an entirely different category from discrimination based on sexuality.

The consensus around that traditional view crumbled earlier this year when Kimberley Hively’s case came before the 7th Circuit (which hears cases from Illinois, Wisconsin and Indiana). Hively claimed that an Indiana community college, for which she had worked as a part-timer for years, refused to consider her for a full-time position because she was lesbian. The trial court dismissed her case, based on that large body of federal precedent. But on appeal, the full 7th Circuit reversed, sending the case back for trial.

The majority opinion held that “it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.” That sentence represents an abrupt U-turn in federal law. But it’s based on straightforward logic. Hively claimed she was discriminated against because she was “(A) a woman who is (B) sexually attracted to women.” If in fact she was treated differently than (A) a man who is (B) sexually attracted to women, then she was discriminated against based on (A) alone. Sex discrimination doesn’t get more clear-cut than that.

Three judges of the 7th Circuit dissented. They would have adhered to the traditional view. The dissenters began with the premise that gender and sexual orientation are separate and distinct characteristics. Based on that premise, they argued, the correct comparison is between a (1) lesbian (2) woman who is (3) attracted to women versus a (1) straight (2) man who is (3) attracted to women. If they are treated differently based on (2), the law is indeed violated. But if they are treated differently based on (1), then no sex discrimination has occurred. According to this traditional interpretation of Title VII, favoring lesbians over gay men (or vice versa) would certainly be illegal, because that would be sex-based. But discriminating against both groups equally is permissible, because that is based on sexuality instead.

The majority countered that the dissent “commits the logical fallacy of assuming the conclusion it sets out to prove.” Whether fallacious or not, the dissent’s traditional interpretation of Title VII is still followed by federal courts within the 10th Circuit, including in New Mexico.

The community college chose not to ask the Supreme Court to review the 7th Circuit’s dramatic rejection of precedent, preventing those of us who don’t live in the Upper Midwest from benefiting from a rigorous re-examination of the traditional view. I expect we’ll be hearing more about this issue soon.

Joel Jacobsen is an author who recently retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at