A federal appeals court in Chicago has ruled that LGBT employees are protected from discrimination under Title VII of the Civil Rights Act of 1964. In doing so, the Seventh Circuit Court of Appeals found that the same federal laws that prohibit workplace discrimination based upon race, color, religion, or sex should also grant the same protections based upon sexual orientation, even though the law does not explicitly use that wording.
The landmark case involved a teacher, Kimberly Hively, who alleged that an Indiana community college would not hire her on a full-time basis because she’s lesbian. The debate among attorneys on the case revolved around whether a court could expand the statutory meaning of “sex” to protect LGBT employees or if the word should only apply to distinguishing workers as “male or female.” Further, the parties argued whether or not the choice to tweak an imprecise law should be left up to Congress.
WAVY.com posted a revealing chunk of courtroom dialogue:
Judge Richard Posner asked the attorney for the community college, John Maley: “Who will be hurt if gays and lesbians have a little more job protection?” When Maley said he couldn”t think of anyone who would be harmed, Posner shot back, “So, what’s the big deal?” Posner also said it was wrong to say a decades-old statute is “frozen” on the day it passed and that courts can never broaden its scope.
Eight out of the 11 judges who reheard the case, including Posner, were appointed by Republican presidents.
The appeals court eventually brought an 8-3 decision — after rehearing oral arguments back in November — while ruling that “considerable calisthenics” would be performed by anyone who tried to exclude “sex” from “sexual orientation,” and so, the court reversed a decision by the three-judge panel that ruled against the plaintiff last year. Chief Judge Diane P. Wood wrote that the plaintiff’s “claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces.”
This ruling follows back-and-forth by the Trump administration on LGBT protections in the workplace. Shortly after inauguration, the White House claimed that Trump would leave Obama-era rules in place. The president then changed course by signing an executive order to dismantle Obama’s policies, which made it almost impossible “to know whether a business has committed to ending LGBT bias in hiring, firing, and promotions.”
Trump hasn’t yet tweeted about the Seventh Circuit’s ruling, but the GOP must be steamed that the court chose not to leave the issue up to Congress, so that they might provide a more precisely worded law. And one can only imagine what would happen with a Mike Pence tiebreaker.