From Ulane to Hively

Practice area:

What’s the greatest joy for a federal district court judge? One happy day might be if he’s flipped by the Court of Appeals, certiorari is granted, and the Supreme Court flips again, saying the trial court was right all along. But recently something happened even rarer, that might be even more satisfying to the Judge I clerked for: after the Seventh Circuit reversed him, that court itself later said it was wrong. It only took twenty-four years.

In 1983, Judge John Grady, appointed by a Republican President, issued a decision ruling that discrimination against someone for being a transsexual violated Title VII. Ulane v. Eastern Airlines, Inc., 581 F.Supp. 821 (N.D.Ill. 1983).

The Seventh Circuit promptly reversed. Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984). According to the Court of Appeals, “because of sex” as used in Title VII couldn’t mean sexual orientation or identity.

The Supreme Court denied certiorari. 471 U.S. 1017 (1985).

Flash forward to 2017, to an en banc decision by the Seventh Circuit, Hively v. Ivy Tech. In that decision, the Court of Appeals ruled 8-3 that Title VII includes sexual orientation. While not saying so specifically (see n.1 in the opinion), Hively effectively reverses Ulane. Mark Joseph Stern, The 7th Circuit’s Landmark Anti-Gay Discrimination Ruling Is Also Great News for Trans Rights, Outward (April 5, 2017); Juliet Berger-White and Charlie Wysong, The Seventh Circuit’s decision in Hively signals protection for transgender individuals, Bench & Bar, Vol. 47, No. 10 (May 2017)

If you are into facts, Karen Ulane was a Vietnam War combat pilot who flew missions in Vietnam from 1964-68. She was fired by Eastern Airlines after 12 stellar years at the airline, when she had a sex-change operation. Eastern (which later went bankrupt), unusually, managed this particular discharge through its legal department, “which carefully drafted the two discharge letters in an obvious attempt to avoid liability[.]” 581 F.Supp. at 828. Judge Grady rejected each purported basis for the firing – along with a few more Eastern threw at Ulane at trial, e.g., accusing her of not really being transgender but just “an aging and dissembling transvestite.” Id. at 828-836. Among other things, Judge Grady noted the disparate treatment for Ulane as opposed to other pilots with alleged medical conditions. For example, there were pilots – all male – who were alcoholics, drinking and flying, and rarely fired. 581 F.Supp. at 833.

Now I don’t know about you, but I’d rather have a transgender veteran combat pilot in the cockpit than a drunken male (or female). If my plane was having mechanical problems, or we hit bad weather, whether my pilot had male or female body parts would not be on my list of concerns.

Here’s an excerpt from Judge Grady’s decision in 1983 rejecting some of Eastern’s defenses, such as no pilots want to fly with her, and her presence makes the public think flying is unsafe:

“This is the kind of argument that opponents of civil rights litigation urged back in those long-ago days when we did not have anti-discrimination laws. We cannot serve blacks in this restaurant. Nobody will come in. We cannot employ a black to drive this bus. Nobody will ride the bus. We sure can’t have any blacks carry the mail or work in a department store. We will lose customers.

Well, the American public is a lot smarter than the bigots gave them credit for being, and those predictions did not prove to be true. I am old enough to remember when there were no blacks driving buses in Chicago or virtually none, no black sales clerks in department stores, no black mail carriers. We all know the extent to which those jobs have been opened up to persons of all races and sexes and how much better a society it has made us and how the insuperable problems that were supposed to come about just did not happen. The same thing is going to happen should Karen Ulane resume her seat in the cockpit, and it will happen with the help of people of good will like some of the people who testified here in this courtroom.”

Karen Ulane never got to get back in that cockpit for Eastern (ultimately there was a settlement that didn’t include restatement).

Maybe the next generation ….

Hively had a vigorous dissent, and there surely will be more litigation in this area. There’s now a split in the circuits, and not just due to old precedent – in March, a split panel in the Eleventh Circuit held that Title VII didn’t prohibit discrimination on the basis of sexual orientation, Evans v. Georgia Regional Hospital, 850 F.2d 1248 (The whole Court of Appeals denied rehearing en banc in July, and Lamdba Legal announced there were going to petition for cert.

(The defendant in Hively didn’t petition).

Who can predict what will happen there?

Whatever ultimately results, it was an honor to clerk for Judge Grady, who retired just a while back. I hope, for now, he enjoys the moment.