Labor & Employment

Does federal law forbid workplace discrimination against gays? Full 7th Circuit hears arguments

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Gavel, scales and a rainbow flag.

A lawyer with Lambda Legal told an en banc federal appeals court on Wednesday that workplace discrimination based on sexual orientation should be prohibited under a federal law barring sex discrimination.

Lawyer Greg Nevins argued on behalf of Kimberly Hively, a math teacher at Ivy Tech Community College in Indiana who says she was denied promotions and fired because she is a lesbian, report the Chicago Tribune, the South Bend Tribune, the Associated Press and Courthouse News Service.

Hively’s case seeking protection under Title VII of the Civil Rights Act is being heard by the Chicago-based 7th U.S. Circuit Court of Appeals. According to Courthouse News, the en banc court “clearly leaned toward” a ruling on Hively’s behalf. A ruling for Hively would be the first time a federal appeals court rules Title VII covers sexual orientation bias, according to AP.

Nevins said Hively should be protected by extending the reasoning of the 1989 Supreme Court case Price Waterhouse v. Hopkins, which found that the Title VII ban on sex discrimination includes discrimination against those who don’t conform to gender norms.

“You can’t discriminate against a woman because she has a Harley or has tattoos or has Bears tickets, but you are told [by Ivy Tech] you can fire her because she is lesbian,” he said. Nevins argued that “the idea that women should be attracted only to men is the ultimate gender stereotype,” and it should be covered by Title VII.

John Maley of Barnes & Thornburg argued the case for Ivy Tech. He argued that any expansion of the civil rights law should be made by Congress rather than the courts. Ivy Tech argues that the law does not protect Hively, but if it did, the community college did not discriminate against her.

Judge Posner posed a series of questions recounted by Courthouse News Service. “What is the cause of lesbianism?” Posner asked.

Maley replied that homosexuality is an “immutable trait” in some people.

“Why doesn’t that make them a different sex?” Posner asked. “If it’s part of your genetic make-up then you are very different than other women.” Posner went on to say that straight women and lesbians are both women, “but very different types.”

Maley said Congress didn’t intend to protect lesbians when it enacted the Civil Rights Act.

“So you think we are bound by what people thought in 1964?” Posner responded.

At another point Posner asked, “Who will be hurt if gays and lesbians have a little more job protection?” Maley said he couldn’t think of anyone. Posner responded, “So what’s the big deal?”

Hat tip to How Appealing.

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