Now Reading
Setback for workplace anti-gay discrimination cases in US

Setback for workplace anti-gay discrimination cases in US

Kimberly HIvely and her lawyer, Greg Nevins of Lambda Legal

A US federal court has ruled that discrimination based upon sexual orientation is not protected by Title VII of the 1964 Civil Rights Act.

The ruling has come as a setback for LGBTI advocates.

In summer 2015, the Equal Employment Opportunity Commission (EEOC) ruled that gay, lesbian and bisexual workers were protected by the Act, saying that discrimination against someone because of their sexual orientation was a form of sex discrimination.

Since that time, it has begun to file lawsuits against employers of LGB people who believe they have been unfairly discriminated against.

Transgender people already have protection under the same part of the Act following a 2011 ruling (Macy v. Holder).

EEOC rulings are not binding on federal courts but are considered to be persuasive. For example, in June, it successfully helped a lesbian former employer of a food packaging company in Maryland win $182,000 for enduring workplace discrimination because of her sexuality.

However, on 28 July, a three-judge panel on the Seventh Circuit ruled that Title VII did not offer protection to a lesbian professor who has raised a complaint against the Indiana college where she worked.

Kimberly Hively, a law professor, took employer Ivy Tech Community College to district court alleging workplace discrimination and claiming she been denied a promotion for being a lesbian. Hively was represented by Lambda Legal. The college denies the allegations.

‘Many courts have been attempting to dress sexual orientation discrimination claims in the garb of gender non-conformity case law’

US Circuit Judge Ilana Rovner, in a 42-page ruling, noted that the current federal law was unclear when it came to handling sexual orientation workplace discrimination cases, expressing it as, ‘a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.’

She went on to note that, ‘The idea that the line between gender non‐conformity and sexual orientation claims is arbitrary and unhelpful has been smoldering for some time, but the EEOC’s decision … threw fuel on the flames.’

‘Because courts have long held that Title VII will not support a claim for sexual orientation discrimination per se, many courts have been attempting to dress sexual orientation discrimination claims in the garb of gender non-conformity case law, with the unsatisfactory results seen in the confused hodge-podge of cases we detail above.’

She expressed understanding of the logic of the EEOC’s view of the matter, but said as Congress has repeatedly rejected legislation on anti-gay workplace discriminations, the court could not change precedent and would not allow the claim to go forward.

Lambda Legal called the ruling a ‘surprise’, noting that, ‘The EEOC and federal district courts in Montgomery, Seattle, and Washington, D.C. all agree that sexual orientation discrimination is a form of sex discrimination.’

‘The Court acknowledges that this is the wrong outcome and repeats over and over again that the distinctions between discrimination on the basis of gender nonconformity which is prohibited by Title VII and sexual orientation discrimination — which the Court says isn’t prohibited under Title VII — is an arbitrary line,’ said Lambda Legal’s Greg Nevins, Counsel and Employment Fairness Strategist.

‘Nevertheless, the Court felt bound by prior Seventh Circuit case law. The writing is on the wall, the precedents the Court felt bound by need to be reconsidered and we need Congress to pass the Equality Act.’

Lambda Legal says it is seeking an ‘en banc’ review of the ruling – whereby it can be considered by the wider Seventh Circuit.

‘The court’s decision makes the need even more urgent for Congress to pass the Equality Act’

Sarah Warbelow, Legal Director with HRC, agreed that the ruling highlighted the need for federal protection, saying in a statement: ‘We are deeply disappointed in the 7th Circuit Court’s decision failing to join the growing consensus that existing civil rights law must reasonably be interpreted to include non-discrimination protections based on sexual orientation.

‘The court’s decision makes the need even more urgent for Congress to pass the Equality Act, making explicitly and permanently clear that LGBTQ people are protected under our nation’s civil rights laws.’

Although not a participant in the Hively case, the EEOC called the ruling an ‘adverse decision’. Spokesperson Justine Lisser said the organization would continue to take up sexual orientation complaints: ‘It has been our practice to continue to investigate charges despite an adverse court decision.

‘Unless the Commission issues policy to the contrary, we will follow current Commission policy and continue to accept and investigate charges alleging sex discrimination that is based on sexual orientation or gender identity.’

The US has seen a surge in LGBT workplace discrimination complaints in the last 12 months. Commentators believe this may be linked to the US Supreme Court ruling on same-sex marriage – with more people getting married and subsequently choosing to come out at work.


H/T: Washington Blade