Last summer, a three-judge panel from the US Court of Appeals for the Seventh Circuit in Chicago upheld a lower court’s decision to dismiss a lawsuit brought by Kimberly Hively, a former part-time employee of Ivy Tech Community College in Indiana, who said her employer had denied her a full-time job on the basis of her sexual orientation. In that ruling, the judges expressed the opinion that federal anti-discrimination law should include explicit protections for LGBT employees, but found no justification for allowing Hively’s discrimination case to proceed. Hesitant to legislate from the bench, the court said any change in the law or its interpretation should only come from Congress or the Supreme Court.
The case was subject to an en banc rehearing by the full court, however, and on Tuesday, the Seventh Circuit reversed the panel’s finding and ruled that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of sex, does indeed apply to LGBT people, the Associated Press reports:
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. A GOP-majority House and Senate make it unlikely the Congress will amend the statute.
“[A] person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes,” Chief Judge Diane Wood wrote for the full court. … “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’ The effort to do so has led to confusing and contradictory results,” Wood wrote, noting that the Equal Employment Opportunity Commission concluded “that such an effort cannot be reconciled with the straight-forward language of Title VII. …
“The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.”
Hively’s case is one of a handful of Title VII lawsuits filed by LGBT people, or on their behalf by the EEOC, since the commission determined in July 2015 that discrimination against them constituted prohibited sex discrimination. The first of these cases was settled out of court last summer, but in November, a federal district judge agreed with the EEOC’s interpretation of the Civil Rights Act in denying a motion by the defendant to dismiss another case, EEOC v. Scott Medical Health Center. And just last week, the Second Circuit Court of Appeals found that Matthew Christiansen, a gay employee of Omnicom Group, had a right to sue his employer after being harassed by a superior over a period of several years. Slate’s Mark Joseph Stern takes a closer look at Chief Judge Robert Katzmann’s concurring opinion in that case, in which Katzmann lays out the case for why sexual orientation discrimination is “almost by definition” sex discrimination:
Katzmann first noted that anti-gay discrimination is, in a very literal sense, always sex discrimination: “Such discrimination,” he explained, “treats otherwise similarly‐situated people differently solely because of their sex.” When an employer mistreats a worker because she dates other women, sex is the key factor: If the employer were male, he could date women without a problem—but because she is female, she faces discrimination. That makes sex the “but for” cause of discrimination: But for the worker’s sex, he would not be mistreated. …
Next, Katzmann described what I call the Loving theory of sex discrimination, which appealed to the 7th Circuit U.S. Court of Appeals when it confronted this issue in November. In Loving v. Virginia, the Supreme Court rejected the argument that anti-miscegenation laws do not discriminate on the basis of race because whites and blacks in interracial relationships were punished equally. The Loving court found that anti-miscegenation laws still constituted race discrimination because they punished romantic association on the basis of race. Courts have since extended that logic to Title VII, holding that when an employer discriminates against an employee for associating with black people, it has engaged in race discrimination.
“Once we accept this premise,” Katzmann wrote, “it makes little sense to carve out same‐sex relationships as an association to which these protections do not apply[.]”
These court decisions come at a time when the American public is growing gradually more accepting of their LGBT relatives, neighbors, and coworkers. GLAAD’s recently released 2017 Accelerating Acceptance Survey found that around two-thirds of non-LGBT Americans are comfortable having LGBT people in their lives, but substantial minorities remain uncomfortable in certain situations: For example, 25 percent said they would be uncomfortable being shown an LGBT colleague’s wedding photo, and and 29 percent would be uncomfortable seeing a same-sex couple holding hands.