LGBT employees protected from workplace discrimination, appeals court rules

A federal appeals court ruling may be the fuel needed to open the door for nationwide workplace protections for LGBT employees.

In an 8-3 decision, the U.S. Court of Appeals for the Seventh Circuit used Title VII's provision protecting against sex discrimination to rule in favor of a woman who said she was denied full-time employment and eventually fired from a community college because she lives as a lesbian. Nevins is optimistic that if these courts reconsider their cases en banc, as Lambda Legal has requested in Georgia, they may change their mind. The law explicitly bars employment discrimination on the basis of "race, color, religion, sex, or national origin".

Previous decisions concluded lawmakers in 1964 clearly intended for "sex" to refer only to whether someone was male or female.

In some states, laws or executive orders protect public employees but not private sector employees from workplace discrimination based on sexual orientation and gender identify.

"Sexism (misandry and misogyny) and homophobia are separate kinds of prejudice that classify people in distinct ways based on different immutable characteristics", judge Diane S. Sykes wrote in her dissent.

Since 1990, Congress has been asked repeatedly to write a new law extending Title VII as the new ruling did, but it has never passed such a measure.

LGBQT advocates expect that the question of whether U.S. civil rights law applies to LGBQT people will soon reach the Supreme Court, which has the power to overturn a series of non-discrimination laws, or lack thereof, in 50 states, as it did when same-sex marriage was legalised nationwide in 2015. The Eleventh Circuit Court decided the Civil Rights Act does not protect LGBTQ workers.

"Greg Nevins, the employment fairness program director for Lambda Legal, which represented Ms. Hively, called the ruling a "tremendous victory". Today one of our most conservative courts ruled that it is unconstitutional to fire someone simply because they're gay or lesbian. "Today the Seventh Circuit said clearly: that's wrong".

The majority opinion also said it was not deciding whether the case might have come out differently had Ivy Tech been a religious institution. That's frequently left the deciding vote to moderate Justice Anthony Kennedy, including when he cast the decisive vote in a 2015 ruling that gave same-sex couples the right under federal law to marry.

Will this stand or will this case go higher?

Judge Richard Posner, who is one of the eight judges on the circuit court appointed by a Republican president, concurred with Wood.

The dissenters argued that the majority was simply inventing a new meaning for the 1964 law, substituting its own preference for the way Title VII was written and had always been understood. She adds that "legislative change is arduous", but that judges aren't authorized to amend laws. "We understand the words of Title VII differently not because we're smarter than the statute's framers and ratifiers but because we live in a different era, a different culture".

  • Larry Hoffman