In a ruling that is being termed as a “game changer”, the full 7th U.S. Circuit Court of Appeals in Chicago recently ruled that Companies cannot discriminate against their LGBT employees because of their sexual orientation. Delivering a ruling by a majority of 8-3, the Court observed that discrimination on the grounds of sexual orientation amounts to sexual discrimination, and therefore is covered under existing federal law known as the Civil Rights Act.
“… Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual. Our panel described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all. Hively’s claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man),” Chief Judge Diane Wood wrote for the majority.
The Court was hearing a case involving Kim Hively, a former Indiana community college teacher, who had claimed that she was denied promotions, and was not granted full-time status despite multiple applications, on account of her being a lesbian. She had then sued the community college in 2013, claiming that she was “blocked from fulltime employment without just cause”, specifically her sexual preference. She was represented by lawyers with LGBT advocacy group Lambda Legal in her Appeals.
The Federal Appeals Court discussed the meaning of the word “sex” in Title VII of the Civil Rights Act of 1964, the provision that bans workplace bias based on race, religion, national origin or sex. The University had contended that it would be wrong to stretch the meaning of “sex” in the statute to also include sexual orientation.
Eight Judges on the Appellate Court, however, went on to rule that workplace discrimination based on sexual orientation violates Title VII of the Act. In an opinion concurring with the majority, Judge Richard Posner wrote that changing norms call for a change in interpretation of the Civil Rights Act.
“I don't see why firing a lesbian because she is in the subset of women who are lesbian should be thought any less a form of sex discrimination than firing a woman because she's a woman,” the Judge wrote.
In the dissenting opinion, Judge Diane Sykes argued that the law does not protect workers on the basis of their sexuality or gender identity. “We are not authorized to infuse the text with a new or unconventional meaning or to update it to respond to changed social, economic, or political conditions,” the Judge wrote.
The ruling did not come on Ms. Hively’s specific anti-discrimination lawsuit. It, however, allows her lawsuit to proceed. The case has now been returned to the U.S. District Court in the Northern District of Indiana.
Read the Judgment Here