This week there was a glimmer of encouraging news for the LGBT community and a temporary sign that more Americans may enjoy the civil rights guaranteed in the Constitution and Federal law today than just a month ago. It was a hard fought victory for the gay community that celebrated a “groundbreaking” 8 to 3 decision extending civil right protections to a class of Americans that continue to be discriminated against; particularly in the workplace.
In a long-running discrimination in employment case, the full Seventh Circuit Court of Appeals ruled that workplace discrimination based on sexual orientation violates a 50-plus-year-old federal civil rights law. This ruling by the Seventh Circuit is significant because it is the highest Federal Court in the land thus far to conclude that “sexual orientation” is included in prohibitions against discriminating on the basis of sex. LGBT rights activists cautiously believe this one ruling “could change the national landscape of employment law for LGBT people.”
The full panel of 11 Judges said that discrimination on sexual orientation grounds is a “form of sex discrimination” that violates Title VII of the Civil Rights Act of 1964. Title VII is part of a federal law prohibiting employers from discriminating against employees on the basis of sex, race, color, national origin, and religion; and now sexual orientation.
The Appeals Court ruling was the result of a case brought by Lambda Legal on behalf of a mathematics instructor at Ivy Tech Community College, Kimberly Hively, who was fired from her job because she is a lesbian. The case began in 2014 when Ms. Hively filed a wrongful termination lawsuit against Ivy Tech Community College. She argued then that the college violated Title VII of the Civil Rights Act of 1964 when it denied her full-time employment and promotions and fired her because someone saw her kiss her then-girlfriend in the school parking lot.
The first trial court dismissed Ms. Hively’s lawsuit on the grounds that according to their limited interpretation, Title VII of the Civil Rights Act only prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. That trial court said there is no federal law that protects employees from LGBTQ discrimination in employment.
After that 2014 decision, Lambda Legal took on the case and in April of 2015 the advocacy group appealed to the Seventh Circuit Court of Appeals asking for “reversal and reinstatement” of Ms. Hively’s original complaint. A little over a year later, in July 2016, a Seventh Circuit three-judge panel ruled against Hively getting a fair hearing in trial court leading Lambda Legal to request a rehearing of the case by the full panel of the Seventh Circuit’s eleven Judges.
That request was granted in October and in November, the Employment Fairness Program Director for Lambda Legal, Greg Nevins returned to appeal to the Circuit Court’s eleven Judges to overturn its prior decisions he argued amounted to “limiting the reach of Title VII.” The full panel reached a majority decision in an 8 to 3 ruling finding that Title VII does indeed protect employees from discrimination based on a person’s sexual orientation. The court determined that Hively’s termination was a violation of Title VII of the Federal Civil Rights Act of 1964.
In writing the opinion for the Seventh Circuit, Chief Justice Diane Wood said:
“… Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual. Our panel described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all. 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. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man).” (author bold)
The attorney representing Ms. Hively commented on the groundbreaking ruling thus:
“In many cities and states across the country, lesbian and gay workers are being fired because of who they love. But, with this decision, federal law is catching up to public opinion: ninety-percent of Americans already believe that LGBT employees should be valued for how well they do their jobs—not who they love or who they are. Now, through this case and others, that principle is backed up by the courts,”
This decision is game-changer for lesbian and gay employees facing discrimination in the workplace and sends a clear message to employers: it is against the law to discriminate on the basis of sexual orientation.”
Kimberly Hively, the woman who was discriminated against and fired simply because of who she loved reacted to the ruling saying:
“I have been saying all this time that what happened to me wasn’t right and was illegal. Now I will have my day in [trial] court, thanks to this decision. No one should be fired for being lesbian, gay, or transgender like happened to me and it’s incredibly powerful to know that the law now protects me and other LGBT workers.”
The CEO of Lambda Legal, the advocacy group that took up Ms. Hively’s case, Rachel B. Tiven said:
“Love won again today. Kim Hively loved her job teaching math at Ivy Tech Community College, but she was fired because she is a lesbian. Today the Seventh Circuit said clearly: that’s wrong. Our movement is about love and pride. Pride in yourself and your work, and the freedom to love and to be treated equally. Even in these challenging times, Lambda Legal continues to win in court and make our country better.”
It was uncertain if there will be any further appeals by Ivy Technical Community College or if they will continue defending the illegal firing in the trial court, but for the time being, there was a bit of good news for the LGBTQ community as a result of 8 out of eleven Appellate Justices understanding that civil rights apply to all Americans regardless of “who they love or who they are.”