You can still be fired for being LGBT if you live in one of the 28 states that doesn’t provide full nondiscrimination protections for LGBT people. But in the near future, one court case might just change that.
The 7th Circuit Court of Appeals said it will fully review Hively vs Ivy Tech College, a case involving a lesbian professor who claims her former employer discriminated against her because of her sexuality. Kimberly Hively, a law professor, says she experienced workplace discrimination starting in 2014 and was denied a promotion six times by Ivy Tech College because she’s a lesbian. Hively is represented by Lambda Legal.
“For too long, LGBT employees have been forced to conceal their true identity at work out of fear of backlash and discrimination,” Hively’s attorney, Greg Nevins, said in a statement. “It’s a modern day ‘don’t ask, don’t tell’ policy in the workplace. Not only is it wrong, it’s illegal — and we need the court to make it clear.”
In July, 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 — which is super confusing, even to two of the judges, because last year the Equal Employment Opportunity Commission ruled that sexual orientation discrimination is a type of sex discrimination which is barred under Title VII. In US Circuit Judge Ilana Rovner’s ruling, she threw out the lawsuit and said the federal law was unclear when it came down to sexual orientation discrimination cases. She acknowledged the difficulty of differentiating between “sex stereotyping” discrimination claims, which is barred under the federal law, and straight-up (ha) sexual orientation discrimination claims, which have not been considered since marriage equality became a thing in 2015. From Rovner’s ruling:
“It seems illogical to entertain gender non‐conformity claims under Title VII where the non‐conformity involves style of dress or manner of speaking, but not when the gender non-conformity involves the sine qua non of gender stereotypes—with whom a person engages in sexual relationships. And we can see no rational reason to entertain sex discrimination claims for those who defy gender norms by looking or acting stereotypically gay or lesbian (even if they are not), but not for those who are openly gay but otherwise comply with gender norms. We allow two women or two men to marry, but allow employers to terminate them for doing so.”
Last Tuesday, the 7th Circuit Court of Appeals said they would rehear the case in a rare procedure known as en banc review, which is when the three-judge ruling is reviewed by all judges on the 7th Circuit. Arguments for the review have been set for November 30. In addition to the en banc review, the court of appeals also vacated the three-judge’s ruling.
This is yet another case in a series of cases at different courts asking the same question if sexual orientation and gender identity are covered under Title VII of the 1964 Civil Rights Act. It’s evident that LGBT people aren’t clearly protected under “sex” discrimination of Title VII. It’s super important that Congress extends the federal anti-discrimination law to cover sexual orientation and gender identity through the Equality Act to provide clear-cut protection for LGBT people not just in the workplace but in housing, education, public accommodations, credit, juries etc.
According to Bloomberg BNA, the decision may ultimately fall on the Supreme Court.
“The U.S. Supreme Court may ultimately decide the issue if Congress doesn’t pass the Equality Act (S. 1858, H.R. 3185), which would amend the Civil Rights Act to explicitly include sexual orientation and gender identity protections in employment, public accommodations, education and housing.”
I know this is serious but lol @ that cover pic stock photo
It’s great that 22 states may have their anti-discrimination laws dragged into the 21st century, but ending workplace discrimination is going to require more than just legal changes. It’s been against the law in Colorado to discriminate against transgender people since before I moved here ten years ago (that’s one of the reasons I moved here), but that didn’t stop my previous employer from firing me for being trans in February. They just had to get creatively discriminatory. Merely legal changes are just first aid for the problem, but the real surgery requires much more. I think the paradigm shift we need is on the way, but this election year has messed up my ability to be hopeful for the future.
Let’s hope for a positive outcome
Title VII was specifically enacted to protect against sex, race, color, national origin, and religious discrimination. The “sex” protection has been used both as a shield and sword for trans and gender-nonconforming folks because courts don’t usually understand the distinction between sex and gender. However, courts have been loathe to extend the definition of “sex” to sexual orientation. The result of this is that you shouldn’t be fired for looking butch, but could easily be fired for telling your co-workers you’re dating a lady.
The problem with us relying on Title VII as it’s currently written to give us sexual orientation protection is that courts are supposed to look at legislative intent when interpreting what a law means and how its protections cover everyone else. When Title VII was enacted, there was a GIANT to-do just to add in “sex” protections. This is part of the reason courts have been so hesitant to extend “sex” to include “sexual orientation”: if Congress wanted to protect people based on sexual orientation, they explicitly would have, and they didn’t. Because of this, forward-thinking judges have had to jump through legal hoops of fire to extend Title VII in any sort of way to protect against discrimination based on sexual orientation, which is why the court precedents are so confusing and illogical now.
What we really need is for Congress to pass federal protections explicitly for queer people. Then courts won’t need to make all these confusing logical leaps to attempt to protect people that they know a law wasn’t actually written to protect. So while it’s nice that there are judges trying to use Title VII to help us out, we shouldn’t get too hopeful.