Appellate Court Affirms Civil Rights Act Title VII Includes Gay, Lesbian and Bi People

Today, a federal appeals court in Chicago ruled that the 1964 Civil Rights Act also protects LGB employees from workplace discrimination, the first time a federal appellate court has come to that conclusion.

The 7th Circuit Court of Appeals issued an historic 8-3 en banc ruling,  in favor of Kimberly Hively, a math teacher who was fired from her job in Indiana because she was seen kissing her girlfriend. In its ruling on the case, brought forward by Lambda Legal, the court stated that discrimination based on sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964 — the first time a federal appellate court has reached this conclusion.

The Hively case stems from a lawsuit alleging that the Ivy Tech Community College in South Bend didn’t hire her full time because she is a lesbian.

The entire court reheard oral arguments in November and directed the toughest questions at a lawyer for the college who argued only Congress could extend the protections. The aggressive questions suggested the court might be willing to expand the 53-year-old landmark law.

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.

Eight out of the 11 judges who reheard the case, including Posner, were appointed by Republican presidents.

The issue could still land before the Supreme Court at some point.

The focus of discussion at the November session in Chicago was the meaning of the word ‘sex’ in Title VII of the Civil Rights Act, the provision that bans workplace bias based on race, religion, national origin or sex.

At a time when all odds seem stacked against the LGB community, given the current Trump administration and its anti-LGBT components, such as Mike Pence, Jeff Sessions, et al, this is a ruling that we can all applaud.  The judicial tide seems to continue to flow in the direction that makes the most sense. How can it be feasible to exclude LGBT people from the most basic imperatives of life – such as equal protection when it comes to one’s job? Nothing about one’s sexuality makes it fair to hold a door open to discrimination in employment.

It is with this in mind that I once again condemn The Human Rights Campaign for their apparent short sightedness – when they were willing, for the longest time, to back a flawed ENDA, the Employment Non Discrimination Act, as amended in the 2014 Congress, which purported to provide equality in employment, but which had onerous religious exemption. Had that ENDA passed,  LGBT people would have been detrimentally impacted through an opportunity for opening the door to religious exemptions yielding discrimination.

Well done to Lambda Legal for taking on this fight and the win.

Updated: 4/5/2017 VIA  Greg Nevins, Employment Fairness Program Director, Lambda Legal:

The decision immediately provides federal employment protection to lesbians, gay men, and bisexuals throughout Indiana, Illinois, and Wisconsin. It is particularly important to those living in Indiana, who currently have no state protections against sexual orientation discrimination in employment.

But its impact is gigantic. An entire federal circuit court sits together, “en banc,” very rarely, and primarily to consider reversing prior case decisions.

This is a moment to celebrate—and to educate. Every member of our community needs to know that their employers can’t fire them for being who they are, because the law is on our side


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