Court Rules Title VII Applies to Anti-LGBTQ Work Discrimination; Your Move, SCOTUS

Kimberley Hively says that starting in 2014, she was the victim of workplace discrimination on the basis of her identity as a lesbian at Ivy Tech College; according to Hively, she was denied a promotion six times. Lambda Legal took her case, and yesterday a federal appeals court ruled in her favor: specifically, they said that Title VII of the Civil Rights Act of 1964, which addresses discrimination on the basis of sex, includes discrimination against employees on the basis of sexual orientation.

Hively’s case is important because it may end up helping to form long-term legal precedent regarding the interpretation of Title VII, and whether it can be used to protect LGBT employees in the future. As Yvonne wrote about Hively’s case in 2016, “a three-judge panel reviewed the case and ruled that discrimination based on sexual orientation isn’t protected by Title VII of the 1964 Civil Rights Act.” In March, an appeals court in the Eleventh Circuit came to the same conclusion in the case of Jameka Evans, a security guard who suffered harassment at work for being a gender nonconforming lesbian.

Both times, judges agreed that Title VII’s language about sex discrimination didn’t extend to discrimination against an employee based on their sexual orientation, although gender conformation may be relevant; in Evans’ case, Judge Jose Martinez said “that Evans could amend her suit to make a case that she was discriminated against due to gender stereotyping, given her masculine gender presentation.” It’s significant, therefore, that the new ruling on Hively’s case included the statement “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 court that made this new decision is generally considered conservative, and the judge who wrote that sentence was appointed by Reagan.

Hively’s case may well end up before the Supreme Court, setting the scene for a far-reaching and longstanding ruling on how Title VII should be interpreted. If the Supreme Court interprets the law as affirming the rights of LGBT employees, it could make a huge difference for people throughout the US. Right now, it’s up to individual states to pass laws requiring fair treatment of LGBT employees, and many states haven’t; it’s legal in many parts of the US to fire or refuse to hire someone because of their sexual orientation, gender presentation and/or trans status. A Supreme Court ruling could change all that, instead solidifying the federal Civil Rights Act as something upon which LGBT employees can rely.

Of course, this is an example of how crucial a difference it will make whether Neil Gorsuch is confirmed to the Supreme Court — as of the writing of this piece, Democrats are strenuously opposing it, although Republicans can still change Senate laws to try to pull the ground out from under them and force the confirmation through. We can’t know exactly how Gorsuch would rule on this particular case; his record as a judge has been anti-LGBT more often than not, and he leans toward a literal and historically grounded interpretation of law, meaning that he may argue the lawmakers in 1964 didn’t intend Title VII to apply to LGBT identities. Gorsuch also has a history of siding with employers and not workers in discrimination cases, as in the case of a woman who was denied extended leave when she had cancer and has since passed away. Most importantly, Gorsuch has actually had occasion to weigh in on the interpretation of Title VII before, in the case of Kastl v. Maricopa County Community College District:

“Judge Gorsuch, sitting by designation on the U.S. Court of Appeals for the Ninth Circuit, joined an unpublished opinion that, while recognizing that a transgender person can state a claim for sex discrimination under Title VII based on a theory of gender stereotyping, ultimately ruled against the plaintiff. The employer had barred the plaintiff from using the female restroom until completing gender-confirmation surgery. The court held that “restroom safety” was a non-discriminatory reason for the employer’s decision.”

Based somewhat speculatively on that, it would seem that Gorsuch would likely agree with the judges’ rulings previous to this week; that Title VII can apply to perception of gender conformity, but not sexual orientation per se.

Even if Gorsuch somehow isn’t confirmed, and no other justice is either, there are also risks to having this case heard by a court with eight justices on the bench. If they tie with a “split vote,” it would mean that no decision is made and the verdict reverts to the last ruling of the previous appeals court — and it would only apply to Hively, not create any further legal precedent for the rest of the nation.

The Trump administration has already managed to make it clear in its first 100 days that it isn’t interested in protecting the rights of LGBT people at work or school; between rescinding the guideline that trans and gender nonconforming students be able to use the facilities of their choice and rescinding the executive order that asked federal contractors to be accountable and document that they weren’t discriminating, the trend is obvious. It remains to be seen what part the Supreme Court will play in the current chapter of LGBT citizens’ fight to be treated equally in all facets of public life.

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Originally from Boston, MA, Rachel now lives in the Midwest. Topics dear to her heart include bisexuality, The X-Files and tacos. Her favorite Ciara video is probably "Ride," but if you're only going to watch one, she recommends "Like A Boy." You can follow her on twitter and instagram.

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  1. Just want to chime in that the 7th Circuit is, in my experience, highly respected. It’s not considered one of the more partisan circuits (like the 9th or the 5th) and I was often asked to look for cases from the 7th Circuit for persuasive authority in cases I worked on.

    This is a big deal for employees.

  2. Geeking out here . . . other fun things about this decision: it relies heavily on Loving vs Virginia, the case that ruled miscgenation (really is such an awful word worth spelling right? I think not) laws unconstitutional (and made my grandparents’ marriage of 15ish years legal everywhere). So thanks, generations of black activists that got us the civil rights amendment and the Loving vs Virginia ruling! Another cool thing, is that it also starts to acknowledge that the law is running up into how constructed gender really is, saying that “And it has taken still longer . . . with a substantial volume of cases struggling and failing to maintain a plausible, defensible line between sex discrimination and sexual-orientation discrimination, to realize that homosexuality is nothing worse than failing to fulfill stereotypical gender roles.” and “how difficult it is ‘to extricate the gender nonconformity claims from the sexual orientation claims.’ In a Power Rangers 2017 style ‘measurably better than the status quo but so far to go’ move, the decision goes out of its way to acknowledge that a person can have a ‘biological sex’ that is not the sex category assigned at birth. The decision lines up with Obama’s EEOC policy to interpret and enforce the Civil Rights Act as protecting employment discrimination based on gender identity or sexual orientation. . . which is still on the eeoc website :)

    • Woops, major typo: *as PROHIBITING any employment discrimination based on gender identity or sexual orientation.

    • Wow- thanks for the copypasta… & interpretation. Appreciate the in-depth knowledge here. :)

  3. Here’s a novel argument. It is the Civil Rights act. Not the discrimination based on sex act. It is the Civil Rights act. With those words Congress wrote a law that was giving everyone the guarantee of freedoms. And as one of the judges asked the lawyer for the other side. Does it really matter if we extended the law to sexual orientation, Does it hurt anyone? And the lawyer couldn’t say that it did hurt someone.

    Imagine for a moment the Offices of Autostraddle need an in house accountant. After interviewing several candidates including a heterosexual woman, the owner of the magazine states we don’t want you cause we only hire lesbians. Now if you to switch teams then by all means you get the job. Well wouldn’t that be discrimination based on sexual orientation? You know it is. You know that Autostraddle would be sued and made to pay. But if Trump gets his way then Autostraddle is off the hook.

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