“Hively represents the ultimate case of failure to conform to the female stereotype,” Wood wrote.
“She is not heterosexual.” Because she is a woman who dates other women, Hively defies the stereotypical expectation that women date members of the opposite sex.
She only faced discrimination because she is a woman dating another woman.
As Easterbrook made clear during oral arguments in , this mistreatment qualifies as discrimination “because of sex,” in the same way that Virginia’s anti-miscegenation law constitutes discrimination because of race.
“If we were to change the sex of one partner in a lesbian relationship,” Wood wrote, “the outcome would be different.
Kimberly Hively is an openly gay professor who believes that her former employer, Ivy Tech Community College, discriminated against her on the basis of sexual orientation.
Hively sued Ivy Tech under Title VII, which prohibits workplace discrimination “because of sex.” A district court ruled against Hively in 2015, concluding that Title VII does not bar sexual orientation discrimination.
By allegedly discriminating against Hively for failing to conform to this gender role, Wood held, Ivy Tech engaged in unlawful sex stereotyping.
Second, Wood deployed what she calls the “comparative method” of Title VII interpretation.
And thus we will win.” Tuesday’s decision is, in short, a thunderbolt.
It lays out three cogent reasons why sexual orientation discrimination is always a form of sex discrimination.
Posner contrasted this theory with the conservative “originalism” championed by Justice Antonin Scalia.