Discrimination on the Basis of Sexual Orientation Is a Form of Sex Discrimination
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The full 7th Circuit Court of Appeals has just ruled 8-3 that the Civil Rights Act of 1964 protects LGBT people from workplace discrimination. This is a historic ruling, given that the full court reviewed the case, Hively v. Ivy Tech, en banc. This is, as the AP notes, "the first time a federal appellate court has come to that conclusion." The court had agreed to hear the case in October, and heard arguments in November.
The court ruled that discrimination on the basis of sexual orientation is a form of sex discrimination.
The AP notes that during arguments, "Judge Richard Posner asked the attorney for the community college, John Maley: 'Who will be hurt if gays and lesbians have a little more job protection?' When Maley said he couldn't think of anyone who would be harmed, Posner shot back, 'So, what's the big deal?' Posner also said it was wrong to say a decades-old statute is 'frozen' on the day it passed and that courts can never broaden its scope."
Hively (photo), a teacher, "was denied full-time employment at Ivy Tech Community College in South Bend, Indiana, six different times and eventually terminated because she is a lesbian," the national LGBT rights legal organization Lambda Legal, which is representing Hively, noted last year.
The ruling concludes that "Ivy Tech allegedly refused to promote Professor Hively because she was homosexual—or (A) a woman who is (B) sexually attracted to women. Thus, the College allegedly discriminated against Professor Hively, at least in part, because of her sex. I conclude that Title VII, as its text provides, does not allow this."
The Court is clearly aware of the world around it. Fox News even made it into the ruling.
"But it has taken our courts and our society a considerable while to realize that sexual harassment, which has been pervasive in many workplaces (including many Capitol Hill offices and, notoriously, Fox News, among many other institutions), is a form of sex discrimination," Judge Posner wrote. "It has taken a little longer for realization to dawn that discrimination based on a woman’s failure to fulfill stereotypical gender roles is also a form of sex discrimination. And it has taken still longer, with a substantial volume of cases struggling and failing to maintain a plausible, defensible line between sex discrimination and sexual-orientation discrimination, to realize that homosexuality is nothing worse than failing to fulfill stereotypical gender roles."
Last month a three-judge panel on the 11th Circuit Court of Appeals ruled Title VII of the Civil Rights Act does not prohibit employers from discriminating against workers on the basis of sexual orientation. It's unclear what will happen next.
UPDATE I: 7:34 PM EDT –
7th Cir: LGB persons embody the ultimate gender non-conformity, thus Title VII sexual orientation claims actionable. pic.twitter.com/1kxYnuoUbh— Anthony M. Kreis (@AnthonyMKreis) April 4, 2017
Posner, J., concurring on the relationship between modern understandings of homosexual and originalists. pic.twitter.com/yxIbK5wzqU— Anthony M. Kreis (@AnthonyMKreis) April 4, 2017
UPDATE II: 7:40 PM EDT –
Via Lambda Legal:
“Love won again today,” said Lambda Legal CEO Rachel B. Tiven. “Kim Hively loved her job teaching math at Ivy Tech Community College, but she was fired because she is a lesbian. Today the 7th Circuit said clearly: that’s wrong. Our movement is about love and pride. Pride in yourself and your work, and the freedom to love and to be treated equally. Even in these challenging times, Lambda Legal continues to win in court and make our country better.”
“I have been saying all this time that what happened to me wasn’t right and was illegal. Now I will have my day in court, thanks to this decision,” said Kimberly Hively. “No one should be fired for being lesbian, gay, or transgender like happened to me and it’s incredibly powerful to know that the law now protects me and other LGBT workers.”
Image via Lambda Legal
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