On Tuesday, a full panel of judges sitting on the U.S. Seventh Circuit Court of Appeals issued a powerful and remarkable decision that makes it unlawful for employers to discriminate against employees based on their sexual orientation under Title VII of the Civil Rights act of 1964. The decision, in Hively v. Ivy Tech Community College of Indiana, openly acknowledges it was breaking with most other Circuit Courts and its own outdated precedents, citing the U.S. Supreme Court’s evolution over the last two decades, such as the landmark Obergefell v. Hodges decision holding that the Due Process Equal Protection Clauses of the constitution protect same-sex marriages.
The mainstay of the Hively decision is that workplace discrimination based on sexual orientation is a form of sex discrimination, and is thus prohibited by the civil rights law. The court brushed aside syllogistic arguments of other courts that Congress did not originally intend the civil rights law to protect against sexual orientation, by tracing the evolution of Title VII court decisions over the years, to include protections against sexual harassment, same-sex workplace harassment, and discrimination based on actuarial assumptions. The court concluded that the “logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discrimination on the basis of sex [italics added], persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.”
The plaintiff in the case is Kimberly Hively, an openly lesbian adjunct professor at the Ivy Tech Community College of Indiana. She claims that she applied and was rejected for six full-time positions between 2009 and 2014, and that her existing part-time job was not renewed in 2014, because of her sexual orientation. After obtaining the right to bring a private action in court by the Equal Employment Opportunity Commission, the District ruled she did not have a valid claim under Title VII because it said discrimination based on sexual orientation is not considered sex discrimination. The Circuit court reversed this decision. Public reports indicate that Ivy Tech Community College will not appeal the decision to the U.S. Supreme Court. In any case, given that there are conflicting rulings among the circuits on this issue, it is more likely the Supreme Court will eventually take up the issue. Further, the decision of the Seventh Circuit could have a positive influence on other circuits.
This decision also marks a milestone for LGBT workplace rights, some forty-five years after Congresswoman Bella Abzug introduced H.R. 166, the first of dozens unsuccessful bills introduced in Congress to prohibit workplace discrimination based sexual orientation. The nation’s painful history of such discrimination was meticulously documented in the U.S. House of Education and Labor Committee report for H.R. 3685, the Employment Non-Discrimination Act of 2007. Here are some examples—excerpted from the House report—we must not forget:
In 1973, Steven Childers was denied a job with the Dallas Police Department because of his sexual orientation, despite the fact that he earned the highest score of any candidate who took the civil service examination for that position. During the relevant job interview, the police department official with sole authority for hiring for that particular opening asked Childers various questions intended to determine Childers’ sexual orientation. At the conclusion of the interview, the interviewer told Childers, “I think you should know there are a lot of cops who like to bust fags.” After he was denied the job, Childers filed suit against the local government employer in the U.S. District Court for the Northern District of Texas, but he was denied relief.
Vernon R. Jantz had regularly worked as a substitute teacher at the Wichita North High School in Wichita, Kansas, but he was denied fulltime employment as a social studies teacher in 1988 because the principal of that high school had perceived that Jantz might have “homosexual tendencies.” Jantz filed suit against the local government employer in the U.S. District Court for the District of Kansas, and he was initially successful as that court ruled in his favor. However, his victory was later overturned by the U.S. Court of Appeals for the Tenth Circuit.
Robin Joy Shahar—a lawyer who was employed by the Georgia Attorney General’s Office—was terminated from her job in 1991 when her State employer discovered that she was a lesbian and had held a private religious ceremony with her lesbian partner. Attorney General Michael Bowers—who had previously achieved notoriety by promoting the discriminatory legal position in the now-discredited case of Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed. 2d 140, 106 S. Ct. 2841 (1986)—personally wrote to Shahar to inform her that he could not continue to employ her because—in his opinion—her life did not reflect appropriately on the Attorney General’s Office. Shahar brought a constitutional challenge in the federal courts, but was ultimately unsuccessful in getting reinstated by her State employer.
The report concludes:
The existence of sexual orientation discrimination in American employment illustrates half a century’s worth of severe anti-gay bias in both the state and private employment contexts. A pattern of anti-gay discrimination began to emerge throughout the 1940’s and 1950’s, both in the public and private employment contexts. In many instances, such discrimination was a matter of policy in areas of Federal employment, as well as in many police forces, fire departments, schools, and public agencies of our country. Even where no government policies mandated sexual orientation discrimination, unchecked private anti-gay biases cost the careers of thousands of GLB workers.
In the end, the Hively’s most poignant argument recognizes the powerful legal momentum identified in the Obergefell decision. Now that the right of same-sex couples to marry is on the books, the Seventh Circuit said there is the “paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.”
As evidenced by the court’s ruling, that just isn’t right.
Cover Photo: Flickr Commons, Ted Eytan: “Arguments at the United States Supreme Court for Same-Sex Marriage on April 28, 2015.”