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Serrins & Associates LLC Employment Law Blog

Monday, April 17, 2017

7th Circuit: LGBT Discrimination is Illegal Under the 1964 Civil Rights Act

Last week, the 7th Circuit Court of Appeals, a federal appellate court tasked with reviewing the decisions of district courts in Illinois, Indiana, and Wisconsin, dropped what can legitimately be called a legal bombshell. In Hively v. Ivy Tech Community College, the 7th Circuit became the first federal appeals court to find that under the Civil Rights Act (the 1964 law that barred private entities and businesses from discriminating on the basis of sex, race, religion, or national origin) discrimination against gay, lesbian, bisexual, and transgender individuals is also illegal.

This Chicago Tribune story by Rex Huppke, gets exactly right the underplaying of this news by the mainstream press: “[In] the perpetual swirl of news and political intrigue, the story of a bipartisan group of judges deciding that workplace discrimination based on sexual orientation is a violation of the Civil Rights Act of 1964 received, at best, a day's worth of attention. It deserved more because, at the risk of sounding like too much of a legal expert, the ruling is a very big deal.”

Here’s the facts of the case. For 14 years, Kimberley Hively worked as a math teacher for Ivy Tech Community College, located in South Bend, Indiana. Hively claimed in her lower court suit that her troubles began in 2009, when her girlfriend gave her a quick kiss as they parted ways before work, a kiss seen by students and faculty. She received a call from school administration soon after, taking her to task for the display of affection and reminding her to be “professional.” In 2011, Hively earned her master’s degree and applied for a full-time teaching position – to that point, she had been working semester to semester. She was denied full-time work, while she saw colleagues with less experience get hired. Her hours were reduced, and eventually in 2014, she was let go completely. She claims that this treatment was due to her sexuality becoming public information at the school – that she was treated worse than her colleagues because she was a lesbian.

Let’s first understand the limitations of the Hively ruling. First, Hively has not won her case. The court did not decide that she was discriminated against. Rather, the trial court had held that Hively did not even have the ability to sue and have that question of fact decided, because even if she had been mistreated due to her sexuality, there was no law barring this. Now, unless the case is appealed again to the U.S. Supreme Court, the trial court will be asked to decide whether actual discrimination occurred. Second, this ruling does not mean that employment discrimination against LGBT workers is now considered the law of the land. The 7th Circuit only covers three states: Illinois, Indiana, and Wisconsin. In those states only, at least pending appeal, the law of the land is now that it is illegal to treat LGBT employees differently than non-LGBT employees in any way, under the 1964 Civil Rights Act.

So understanding those limitations, why are legal commentators still calling this a big deal? Well, the issue of discrimination against LGBT workers has a long history of controversy. Some states, New York among them, have instituted very strong legal protections for these workers. Here, it has been illegal to discriminate against gay and lesbian employees for many years. But in other states, no such legal protections exist, and it is no exaggeration to say that anyone could be fired at any time and told that the reason is, “Because you’re gay.”

It is not different from the situation with gay marriage before Obergefell v. Hodges. There, whether you could legally marry depended entirely on what state you lived in. Such is the natural result when there are no federal protections applying across the country.

Hively has the potential to change that for employment discrimination. The 7th Circuit found that discriminating against an individual because of the gender of the individuals they are attracted to is just another form of sex discrimination. To quote the court: "Viewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype… she is not heterosexual.” In other words, to discriminate against Hively based on her sexuality would be, legally, indistinguishable from discriminating against her because she didn’t wear dresses or makeup, or didn’t act as one stereotypically believes a woman “should.” LGBT discrimination is sex discrimination.

What next? Well, it will depend at least in part on whether Ivy Tech decides to appeal the ruling. If so, this could very well head to the Supreme Court, as other circuits have come to different rulings on the same issue. That makes the case ripe for review by the U.S. Supreme Court. Stay tuned – we will keep you updated on the saga of Kimberley Hively and her accidental quest to outlaw LGBT workplace discrimination across the country.





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