Seventh Circuit Rules Discrimination Based On Sexual Orientation Barred By 1964 Law
In what appears to be the first ruling of its kind, the Seventh Circuit Court of Appeals has ruled that discrimination based on sexual orientation is banned under the Civil Rights Act of 1964:
In a significant victory for gay rights, a federal appeals court in Chicago ruled Tuesday that the 1964 Civil Rights Act protects gay workers from job discrimination, expanding workplace protections in the landmark law to include sexual orientation.
The decision by the United States Court of Appeals for the Seventh Circuit, the highest federal court yet to grant such employment protections, raises the chances that the politically charged issue may ultimately be resolved by the Supreme Court. While an appeal is not expected in this case, another appellate court, in Georgia, last month reached the opposite conclusion, saying that the law does not prohibit discrimination at work for gay employees.
The ruling on Tuesday comes as gay rights advocates have voiced concern about the potential rollback of protections under President Trump. While the Supreme Court legalized same-sex marriage, many other legal protections, including in employment and housing, have not been extended at all levels to gay people.
The White House considered and then scuttled a plan to overturn Obama-era protections for lesbian, gay, bisexual and transgender people. But the Trump administration also rescinded protections for transgender students that had allowed them to use bathrooms corresponding with their gender identity.
In the decision on Tuesday, the judges ruled by an 8-to-3 vote that the civil rights law, which already prohibits discrimination on a variety of factors, also includes protections based on sexual orientation. They concluded that such discrimination was no different from a form of sex discrimination, which the law prohibits. Five of the eight judges in the majority were appointed by Republican presidents.
The case stems from a lawsuit by Kimberly Hively, an Indiana teacher who has alleged that she was fired from Ivy Tech Community College because she is a lesbian. She applied to six full-time jobs at the school in South Bend, Ind., that she did not get, and she was let go from her part-time position there in 2014.
The community college denies that she was discriminated against because of her sexual orientation.
“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 court’s chief judge, Diane P. Wood, wrote in the opinion. “Ivy Tech is disadvantaging her because she is a woman.”
The court did not rule on Ms. Hively’s specific anti-discrimination lawsuit. But the ruling allows for Ms. Hively’s employment case to proceed. A lower court had dismissed her case, ruling that the Civil Rights Act did not include sexual orientation protections.
Ms. Hively, who represented herself in the lower court because she said no lawyer thought she would win, said late on Tuesday that she was still processing the significance of the ruling.
“I wasn’t doing it just for me, but for anyone who was going to be bullied in a job for who they decided to love,” she said in an interview.
Greg Nevins, the employment fairness program director for Lambda Legal, which represented Ms. Hively, called the ruling a “tremendous victory.” He said the Seventh Circuit’s approach to the Civil Rights Act was a momentous shift from past cases.
“The problem with the old decisions was a focus on the words that were not in the statute — ‘We don’t see sexual orientation in the statute, so you lose’ — instead of what is in it: sex discrimination,” Mr. Nevins said in an interview.
An official at Ivy Tech said on Tuesday night that it “respects and appreciates” the ruling and does not plan to appeal it to the Supreme Court. “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,” said the official, Jeff Fanter, the senior vice president for communication and marketing at Ivy Tech.
Lawyers with the firm Barnes & Thornburg, which is representing Ivy Tech, did not immediately return phone calls or respond to emails.
Previous Circut Courts who have dealt with this issue have ruled against employees seeking to apply the Civil Rights Act to discrimination claims based on sexual orientation. The 11th Circuit, for example, recently ruled against an employee at a hospital in Georgia who claimed that she was fired from her job because she is a lesbian. Just last week, a panel of the Second Circuit Court of Appeals rejected a similar claim from an employee at a private business who claimed that they had been fired because of sexual orientation. At the same time, other lower-level Courts have both accepted and rejected the argument that the Civil Rights Act of 1964, which in its relevant portion prohibits discrimination based on sex, applies to discrimination that is based on sexual orientation. At the very least, then, it’s clear that we have a Circuit split on this question, which would ordinarily mean that the Supreme Court would be likely to take up an appeal if one were presented to them. In the Seventh Circuit case, though, that appeal is not going to be forthcoming immediately. As the article quoted above notes, the Defendant in the case has apparently already decided that they would not be immediately appealing the case to the Supreme Court but instead, would return to the District Court and fight the case on the merits for now. This doesn’t preclude the possibility that the nation’s highest court won’t be asked to rule on this particular case in the future, but any such appeal may be years away depending on how long it takes for the matter to get through trial in the District Court and a likely second appeal to the Seventh Circuit regardless of which side wins below. It’s also possible that either the 11th Circuit case or the 2nd Circuit case will soon be before the Justices and that they may decide to take one or both cases up for review. In any case, for the time being the Seventh Circuit’s decision stands, although it only applies inside the Seventh Circuit. How this issue plays across the rest of the Federal Judiciary will be interesting to see.
As things stand, the case for extending the Civil Rights Act of 1964’s bar on discrimination based on sex to sexual orientation strikes me as a fairly tenuous legal argument at best. It’s clear from the legislative history of the law that the provisions regarding barring discrimination based on “sex” were meant to cover situations where a person was hired, fired, or treated unfairly by an employee based on their gender, not on the question of whether they were attracted to members of the opposite sex or people of the same sex. For better or worse, at the time the law was drafted this was simply not an issue and it’s difficult to imagine that the people who voted in favor of the law intended that the law they were passing should be interpreted to apply to those situations. This has most certainly been recognized at the state level, where many states have expanded their civil rights protections to apply to gays and lesbians through legislation. Additionally, the Employment Non-Discrimination Act, which would essentially do what the Seventh Circuit is purporting to do in this decision, has been pending before Congress in one form or another for several years now. Rather than relying upon Courts to deliver what is essentially a very creative interpretation of a fifty-three-year-old law, it strikes me that it would be more appropriate to leave this matter to the legislature, where it belongs. Yes, it’s more difficult to accomplish, but that’s beside the point. It isn’t the job of Judges to read things into statutes that clearly aren’t there, and in this case it seems clear to me that there is no bar against discrimination based on sexual orientation in the Civil Rights Act of 1964, that it was never the intention of the drafters that the law cover such situations, and that the law should not be interpreted so overly broadly so as to create liability under the law that clearly doesn’t exist based on a fair reading of the words on the paper.
None of this is to suggest that discrimination based on sexual orientation isn’t wrong on some moral level, of course. Ideally, any discrimination based on anything other than one’s fitness for a particular job and job performance is unfair on some level. However, that is a different thing from the question of whether a law that was intended to bar one thing should be interpreted to bar something else. That’s not how the law works, and that’s not how Judges should be doing their jobs.
Anyway, here’s the opinion: