Published: Thu, April 06, 2017
U.S. | By Vera Richards

Appeals Court Rules That Title VII Bars Sexual Orientation Bias in Employment

Appeals Court Rules That Title VII Bars Sexual Orientation Bias in Employment

The 8-3 ruling has huge political and legal consequences.

For the first time, a federal appeals court has ruled that a 1964 civil rights law, as now understood, protects gay and lesbian employees from discrimination in the workplace based on their homosexuality. For example, one issue not addressed by the 7th Circuit is how this new theory will affect religious institutions given that different standards apply to them under federal antidiscrimination laws.

The majority ruled on behalf of Kimberly Hively, a former math teacher at Ivy Tech Community College in IN who says she was denied promotions and fired because she is a lesbian. Courts have noted that drawing a line that separates these "sex-stereotyping" claims from pure sexual orientation claims is "exceptionally difficult" because the distinction is often "elusive", meaning that employers anywhere could face a Title VII claim akin to sexual orientation discrimination that would be accepted as valid by a federal court no matter what the federal appeals courts say. She also noted, among other cases, a 2016 decision by a federal district court in CT that allowed a Hartford teacher's claim of sexual orientation discrimination against the Hartford school district to go forward under Title VII. Wood also endorsed the textualist theory of sex discrimination, which crosses over neatly into the transgender context. She would be a man married to a woman-a heterosexual-and would not have been denied employment because of her relationship.

The ruling "sends a clear message to employers: It is against the law to discriminate on the basis of sexual orientation", Gregory Nevins told the Columbus, Indiana, Republic.

In explaining why the court was taking the step it took Tuesday, Wood detailed the role of the court - and the changed legal circumstances for gay people in America today, detailing the line of Supreme Court decisions over 20 years that culminated in 2015's Supreme Court decision ending state bans on same-sex couples' marriages.

The majority of the en banc Seventh Circuit Court spoke through three separate opinions, but the result was explicit and clear: a gay or lesbian worker has a legal right to pursue a claim that he or she was not hired, was not promoted, or was sacked or otherwise was treated unequally because they were gay or lesbian. Judge Richard Posner, one of the presiders in the case, wrote in his opinion that the 1964 Civil Rights Act needs a new definition of "sex" in its stipulation that employers can not discriminate on the basis of an "individual's race, color, religion, sex, or national origin".

"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", Wood continued.

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Title VII makes it illegal for an employer to "fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex or national origin". Discriminating against a woman because she's pregnant counts as sex discrimination.

Mr. Eastman said the ruling is another sign that judges increasingly do not think they are bound by what the law says. That's a diplomatic way of saying that there's going to be a lot of discussion about "activist judges" in response to this case.

"The result is a statutory amendment courtesy of unelected judges", Sykes wrote.

Title VII of the federal Civil Rights Act prohibits discrimination based on sex in employment. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. Either way, the result is the same: the circumvention of the legislative process by which the people govern themselves.

Judge Wood also relied in part upon a wide interpretation of the Supreme Court's 1967 ruling in Loving v. Virginia, permitting interracial marriage, and on a series of more recent decisions by the Justices broadening gay rights - including the ruling two years ago in favor of same-sex marriage. That's been the libertarian argument for same-sex legal recognition.

On the other hand, this is also a situation where the decision increases the opportunity for the government to use the law, its authority, and its monopoly of force in order to punish private citizens, and that should always be a reason for concern. That's because federal civil rights laws don't ban sex discrimination in public accommodations. The college terminated her contract in 2014. The ruling is now competing for attention with the shocking, shocking news today that Barry Manilow is gay.

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