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to Section One | to Arts & Entertainment
posted Friday, April 7, 2017 - Volume 45 Issue 14
Title VII of Civil Rights Act protects Lesbians and Gays, Seventh Circuit rules
Section One
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Title VII of Civil Rights Act protects Lesbians and Gays, Seventh Circuit rules

by Mike Andrew - SGN Staff Writer

Title VII of the Civil Rights Act of 1964 protects Lesbians and Gays against discrimination on the job, the Seventh U.S. Circuit Court of Appeals ruled on April 4.

In an en banc decision, one involving all the active judges of the appeals court, the judges ruled 8-3 that a prior decision by a three-judge panel of the court was wrong, and plaintiff Kimberly Hively was entitled to federal civil rights protection.

Hively charged that her employer, Ivy Tech Community College in South Bend, Ind., refused to put her on full-time and ultimately fired her because she is a Lesbian. Had she been a man with a girlfriend instead of a woman, she said, her employer would have had no problem with her. Therefore, she concluded, her case fell under Title VII's prohibition against discrimination on account of sex.

The three-judge panel that originally heard Hively's case said the word 'sex' in Title VII could not be construed to cover sexual orientation. The en banc court disagreed, however.

'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,' Chief Judge Diane Wood wrote in her majority opinion.

'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).'

The case is significant because federal civil rights laws do not explicitly protect LGBT people. The Seventh Circuit's reading of Title VII affords protections to the LGBT community for the first time.

'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,' said Greg Nevins, Employment Fairness Program Director for Lambda Legal, which represented Hively.

'This decision is a 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.'

'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 court, thanks to this decision,' Hively said in a statement. '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.'

In 2012, the Obama-era Equal Employment Opportunity Commission (EEOC) - the agency charged with enforcing federal civil rights laws affecting the workplace - determined that Title VII did, indeed, protect LGBT workers, but this interpretation is not embraced by the Trump administration.

The Seventh Circuit decision may be appealed to the U.S. Supreme Court, and the high court would agree to hear the case if at least four of its justices wanted to do so.

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