The U.S. Court of Appeals for the Seventh Circuit issued a potentially landmark ruling on April 4, extending job discrimination protections to gay and lesbian employees. In the case of Hively v Ivy Tech Community College, the court found that Ivy Tech had engaged in sex discrimination when it denied part-time professor Kimberly Hively an opportunity for full-time employment because she is a lesbian.
Sex, sexual orientation, and civil rights
The Chicago-based appellate court thus became the highest federal court to rule that discrimination on the basis of sexual orientation violates the 1964 Civil Rights Act, which makes it unlawful to discriminate on the basis of sex. The court forged new ground in deciding that one’s sexual orientation falls under the protected class of sex, which had previously only applied to gender.
Other federal courts have disagreed, most notably the 11th U.S. Circuit Court of Appeals, which in March found that Title VII workplace protections did not extend to gay and lesbian employees. The Atlanta-based court ruled that past precedents had established that sexual orientation is not a protected class under Title VII.
Can the law survive new SCOTUS justice?
The conflicting rulings set the stage for a decisive battle in the Supreme Court, where Justice Neil Gorsuch, President Donald Trump’s recent appointee, could hold the pivotal vote. And while Gorsuch has stated he would respect precedent on cases involving equal protection of the laws, he did join a ruling that employers were free to fire a transgender woman for unsubstantiated safety reasons regarding the use of workplace restrooms.
In the lead opinion of the Seventh Circuit’s 8-to-3 decision, Chief Judge Diane P. Wood noted the ruling is specific to gays and lesbians and thus does not cover discrimination based on gender identity. She also noted the decision did not resolve how Title VII should be applied to cases of sexual orientation in religious or public-sector employers.
While conservatives derided the decision, Judge Wood indicated the majority opinion relied upon past Supreme Court decisions. Specifically, she noted the 1967 Supreme Court ruling, Loving v. Virginia, which permitted interracial marriage, and the Court’s ruling two years ago legalizing same- sex marriage.