The Supreme Court ruled last year that gays and lesbians were entitled to equal marriage rights. But when it comes to the right to work free from discrimination, federal protections currently don’t cover LGBTQ employees.
That could soon change in the Seventh Circuit, however, as the en banc court hears a case today that could result in employment discrimination protections being extended to gay and lesbian workers.
The case at issue is Hively v. Ivy Tech Community College. Adjunct professor Kimberly Hively alleges that she was denied a full-time job at the college, and that the college eventually let her contract lapse, because she is a lesbian.
That’s an interpretation of sex discrimination which the Equal Employment Opportunity Commission has recently embraced, but which the Seventh Circuit rejected. Acknowledging EEOC criticism that “this court and others have continued to reflexively declare that sexual orientation is not cognizable under Title VII without due analysis or consideration of intervening case law,” the three-judge panel nonetheless found in July that Hively had asserted a sexual orientation discrimination claim that was “beyond the scope of the statute.”
Taking on a “Jumble of Inconsistent Precedents”
The court’s en banc rehearing “gives the 7th Circuit a historic opportunity to fix what three of its own judges have called ‘a jumble of inconsistent precedents’ and a ‘confused hodge-podge of cases,’” Alison Frankel writes for Reuters.
Seventh Circuit Judge Ilana Rovner emphasized these contradictions in the earlier Hively opinion:
“It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love or marry,” the opinion reads.
[C]ourts have gone about this task in different ways-either by disallowing any claims where sexual orientation and gender non-conformity are intertwined, (and, for some courts, by not allowing claims from lesbian, gay, or bisexual employees at all), or by trying to tease apart the two claims and focusing only on the gender stereotype allegations. In both methods, the opinions tend to turn circles around themselves because, in fact, it is exceptionally difficult to distinguish between these two types of claims.
Judge Rovner’s opinion has given LGBTQ advocates hope that those precedents could be overruled, however. “I sense Judge Rovner was troubled by the fact her hands were tied,” Lambda Legal lawyer Kenneth Upton told Frankel. “Sexual orientation doesn’t have anything to do with employees’ ability to do their job,” according to Upton. “It shouldn’t be a determiner of whether you should continue to be employed.”
If the Seventh agrees, finding that Title VII extends to gays and lesbians, it will become the first circuit court to embrace greater employment protections for LGBTQ workers – and it will make civil rights history.
Related Resources:
- LGBT Worker’s Civil Rights Case Could Reach Beyond State (Indianapolis Star)
- You’ve Got to Feel Bad for Attorneys Arguing the SSM Cases (FindLaw’s U.S. Seventh Circuit Blog)
- 7th Circuit: Sexual Orientation Not Covered by Title VII - See more at: https://blogs.findlaw.com/seventh_circuit/2016/08/7th-circuit-sexual-orientation-not-covered-by-title-vii.html#sthash.OT6oFzGe.dpuf
- 7th Circuit: Sexual Orientation Not Covered by Title VII (FindLaw’s U.S. Seventh Circuit Blog)
- What Is the Indiana Religious Freedom Law About, Anyway? (FindLaw’s U.S. Seventh Circuit Blog)
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