CHICAGO (CN) – In a major victory for LGBTQ rights, the Seventh Circuit ruled late Tuesday that discrimination in the workplace on the basis of sexual orientation is a form of sex discrimination and therefore forbidden by Title VII.
Kimberly Hively, a lesbian woman, began teaching as a part-time adjunct professor at Ivy Tech Community College in Indiana in 2000. She applied for six full-time promotions between 2009 and 2014, but says she was rejected for all of them, despite her sterling student reviews. The college terminated her contract in 2014.
Hively filed a Title VII lawsuit in federal court alleging she was denied full time employment because of her sexual orientation, but the case was immediately dismissed because Seventh Circuit precedent asserted that Title VII anti-discrimination laws apply to sex but not sexual orientation.
“Hively alleges that if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her,” Chief Judge Diane Wood said, writing for the court’s majority. “This describes paradigmatic sex discrimination.”
Prior to Tuesday’s ruling, federal law allowed a gay or lesbian employee to get married to their same-sex partner on Saturday, but be fired for exercising that right on Monday.
Title VII of the Civil Rights Act has been understood since 1989 to protect heterosexual employees from gender stereotyping, but not homosexual employees.
This reading created a very murky legal landscape where employers can legally fire an employee if they believe him or her to be gay, but cannot fire them for displaying characteristics stereotypical of the other sex.
Hively’s attorney Gregory Nevins with the Lambda Legal Defense and Education Fund told the court at oral arguments that precedent regarding gender stereotyping is absolutely applicable in this case.
“The idea that women should be attracted only to men is the ultimate gender stereotype,” Nevins said in November. “That absolutely should be covered [by Title VII.]”
Wood’s opinion hammers home this same point.
“A policy that discriminates on the basis of sexual orientation does not affect every woman, or every man, but it is based on assumptions about the proper behavior for someone of a given sex,” the 23-page opinion states. “The discriminatory behavior does not exist without taking the victim’s biological sex (either as observed at birth or as modified, in the case of transsexuals) into account. Any discomfort, disapproval, or job decision based on the fact that the complainant – woman or man – dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.” (Parentheses in original.)
Judge Diane Sykes, in her dissent joined by two other judges, called the majority’s decision a classic example of judicial overreach.
“The majority deploys a judge-empowering, common-law decision method that leaves a great deal of room for judicial discretion. So does Judge Posner in his concurrence,” Sykes wrote. “Neither is faithful to the statutory text, read fairly, as a reasonable person would have understood it when it was adopted. The result is a statutory amendment courtesy of unelected judges.”
Judge Richard Posner argued forcefully in a separate concurrence against the originalist interpretation of Title VII supported by Sykes’ dissent, and said the law should be read with modern eyes.
“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. Congress in the 1960s did not foresee the sexual revolution of the 2000s,” Posner said. (Emphasis in original.)
He acknowledged there is little chance legislators intended Title VII to cover gay and lesbian employees – but said it doesn’t matter, because “today ‘sex’ has a broader meaning than the genitalia you’re born with.”
The issue is likely headed to the U.S. Supreme Court, as the 11th Circuit ruled just the opposite three weeks ago, finding that Title VII does not protect a lesbian who dressed like a man at work from being fired for her gender non-conformity.
Hively said in a statement that she was pleased with the Seventh Circuit’s ruling.
“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,” Hively said. “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.”
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