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Workers can't be fired for being gay, federal court rules

by Lisa Keen

Math teacher Kimberly Hively. Photo: Courtesy Lambda Legal<br><br><br><br><br><br><br>
Math teacher Kimberly Hively. Photo: Courtesy Lambda Legal


For the first time ever, a federal appeals court Tuesday ruled that a federal law prohibiting sex discrimination in employment also prohibits sexual orientation discrimination.

In an 8-3 decision by the 7th U.S. Circuit Court of Appeals, which covers the states of Illinois, Indiana, and Wisconsin, the court reversed a district court's dismissal of a lawsuit in which an employee alleged her employer discriminated against her because she is a lesbian. The appeals court remanded the case back to district court.

"We hold only that a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes," concluded the court.

But that was a big "only." Title VII of the federal Civil Rights Act prohibits discrimination based on sex in employment. Though some district courts have, no other federal appeals court has made a similar ruling, according to Jon Davidson of Lambda Legal Defense and Education Fund, which represented the employee in this case.

And Davidson has speculated that, if the question goes to the Supreme Court, its ultimate resolution "will control other federal laws barring sex discrimination, including Title IX (which governs discrimination in federally-funded educational programs), the Fair Housing Act, the Equal Pay Act, section 1557 of the Affordable Care Act (which bars discrimination in health care and health care insurance), and the Equal Credit Opportunity Act."

Writing for the majority, the 7th Circuit's Chief Judge Diane Wood (a Clinton appointee) acknowledged that the decision in Hively v. Ivy Tech required taking a "fresh look" at previous rulings by federal appeals courts "in light of developments at the Supreme Court extending over two decades."

The case was brought by Kimberly Hively, a part-time math teacher for a small community college in Indiana. Over the course of her 13 years at Ivy Tech Community College, she applied for a full-time position six times and was rejected each time. In 2014, the college declined to renew her part-time contract. Hively said she believed she was being discriminated against because she is a lesbian.

The district court judge, a Reagan appointee, dismissed the lawsuit, saying that Title VII of the Civil Rights Act â€" which prohibits sex discrimination â€" does not prohibit discrimination based on sexual orientation. The lower court judge noted that the 7th Circuit, acting in previous cases, had ruled "Congress intended the term 'sex' to mean 'biological male or biological female,' and not one's sexuality or sexual orientation." A 7th Circuit panel upheld that decision, saying it was "presumptively bound" by that same precedent.

The majority's decision acknowledged that the lower courts were bound by precedent and made clear it did not have the authority to add "sexual orientation" to the list of protected categories in Title VII. But the majority opinion said it "must decide what it means to discriminate on the basis of sex. ..."

In looking to Supreme Court decisions for guidance, the 7th Circuit relied heavily on Oncale v. Sundowner, a case in which the high court said that Title VII's prohibition of sex discrimination (and sexual harassment) includes same-sex sexual harassment. It also relied heavily on Price Waterhouse v. Hopkins, in which the high court ruled that Title VII's prohibition of discrimination because of "sex" included discrimination against an employee based on expectations for an employee's appearance and behavior based on their biological sex.

"Any discomfort, disapproval, or job decision based on the fact that the complainant â€" woman or man â€" dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex," wrote the majority.

The majority said it also considered strongly the Supreme Court's rulings in several landmark LGBT-related cases: Romer v. Evans, which struck down a state ban on local ordinances prohibiting sexual orientation discrimination; Lawrence v. Texas, which struck down state laws banning consensual sexual relations between same-sex adults; U.S. v. Windsor, which struck down the federal law which prohibited any recognition of marriage between same-sex couples for federal purposes; and Obergefell v. Hodges, which struck down state laws banning marriage between same-sex partners.

"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," wrote the majority, "that the time has come to overrule our previous cases that have endeavored to find and observe that line."

Shannon Minter, legal director for the National Center for Lesbian Rights, said the decision "opens the door to a new era for LGBTQ plaintiffs under federal sex discrimination law."

"With this historic decision, the 7th Circuit is the first federal appellate court to acknowledge that discrimination because a person is gay, lesbian, or bisexual can only reasonably be understood as discrimination based on sex," Minter said. "The court deserves credit for rejecting the tortured rationales of older decisions and undertaking a principled analysis, based on the Supreme Court's affirmation in Price Waterhouse and other cases, that Title VII of the Civil Rights Act of 1964 must be broadly construed to prohibit the full range of sex-based discrimination."


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