In a landmark decision for LGBTQ rights, a full panel of the 7th Circuit Court has ruled that discrimination on the basis of sexual orientation constitutes sex discrimination and is therefore prohibited under Title VII of the Civil Rights Act. This is the first ruling of its kind from a federal court and contradicts a recent ruling by the 11th Circuit which found that sexual orientation was not covered under Title VII.
The previous ruling concerned Jameka Evans, a security guard who said she was targeted for her orientation and endured a hostile work environment because of it. The 11th Circuit ruled against her; but in the case of Kimberly Hively, a math professor from Indiana, the 7th Circuit ruled in her favor that Title VII covers sexual orientation.
A full panel of 11 judges ruled 8-3 in favor of a new interpretation of Title VII that includes sexual orientation as a protected class under federal law. The primary author of the ruling, U.S. Chief Judge Diane Wood, wrote that sexual orientation concerns gender stereotypes, a factor already established as sex discrimination by court precedent.
“If we were to change the sex of one partner in a lesbian relationship, the outcome would be different. This reveals that the discrimination rests on distinctions drawn according to sex,” Wood wrote in the ruling. “Any discomfort, disapproval, or job decision based on the fact that the complainant — woman or man — dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex.”
Another judge on the panel, U.S. Circuit Judge Richard Posner, may be recognized by qnotes readers as the 7th Circuit judge who ruled in favor of marriage equality in 2015.
“The position of a woman discriminated against on account of being a lesbian is thus analogous to a woman’s being discriminated against on account of being a woman,” Posner wrote in the recent ruling. “That woman didn’t choose to be a woman; the lesbian didn’t choose to be a lesbian. 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.”
A dissenter to the ruling, U.S. Circuit Judge Diane Sykes, was recently short-listed for a Trump administration Supreme Court nomination before missing the cut. Sykes wrote in her dissent that the ruling was a case of judicial overreach.
“We are not authorized to infuse the text with a new or unconventional meaning or to update it to respond to changed social, economic, or political conditions,” according to Sykes.
The defendants in the case, Ivy Tech Community College of Indiana, do not plan to appeal the decision to the Supreme Court.
“Ivy Tech Community College rejects discrimination of all types, sexual-orientation discrimination is specifically barred by our policies,” said Ivy Tech spokesperson Jeff Fanter. “Ivy Tech respects and appreciates the opinions rendered by the judges of the Seventh Circuit Court of Appeals and does not intend to seek Supreme Court review. The college denies that it discriminated against the plaintiff on the basis of her sex or sexual orientation and will defend the plaintiff’s claims on the merits in the trial court.”
Despite that this case will not move to the Supreme Court, the conflict between this ruling and the 11th Circuit’s ruling may ultimately be decided there according to labor and employment law partner JoLynn Markison of Dorsey & Whitney international law firm.
“Given the split between Circuits, we may see the Supreme Court taking up this issue in the near future,” Markison said in a recent email. “Employers outside the Seventh Circuit would do well to heed the Hively decision, and should consider updating their policies to exclude discrimination on the basis of sexual orientation.”
“Under the new law, North Carolina local governments are barred from passing laws that would offer such protection from discrimination for the next 44 months,” Rob Schofield of Policy Watch wrote. “Now, with any luck, there’s a chance (as with marriage equality) that federal courts could mandate such protections.”