Ruling Affirms Civil Rights Laws Protect Employees from Discrimination Based on…

Appeals court: Civil Rights Act protects lesbian, gay, bisexual and transgender employees

Over the years, Wood said, the ban on discrimination on the basis of sex has been interpreted by the Supreme Court to cover workplace sexual harassment, including same-sex sexual harassment, and harassment on the basis of failure to conform to gender stereotypes. It also likely means that, for the foreseeable future, there will be a split among the federal courts as to the meaning of federal discrimination law.

"I don't see why firing a lesbian because she is in the subset of women who are lesbian should be thought any less a form of sex discrimination than firing a woman because she's a woman", wrote Judge Posner, who was appointed to the judgeship in 1981 by Ronald Reagan. This decision marks the first time a federal appellate court has ruled this way and reverses a previous decision made in July.

John Maley, a lawyer representing Ivy Tech, argued Title VII's use of the word "sex" referred only to biological sex and not sexual orientation. Obviously, insisting that an employee identify as the sex they were assigned at birth-or adhere to gender norms related to that sex-involves sex stereotyping. However, no federal appellate court went that far - until now. Gorsuch also has a history of siding with employers and not workers in discrimination cases, as in the case of a woman who was denied extended leave when she had cancer and has since passed away.

It is yet unknown whether or not Ivy Tech will appeal, which would take the case to the Supreme Court, should the Court decide to hear the case.

Hively said she was not asked back to the school in 2014 after working there for 14 years.

Working on a semester-to-semester basis, Hively said she applied for six to seven full-time teaching and administrative positions after earning a graduate degree in 2011. Only three 7th Circuit judges dissented. And it could be reversed by the US Supreme Court - or affirmed, expanding the ruling to the rest of the country. The three dissenting judges agreed. That's the reaction from Chris Paulsen, speaking for Freedom Indiana, an LGBT rights group.


"Sexual orientation is not on this list of forbidden categories of employment discrimination", Mr. Rotunda said in an email". In addition, the court noted that efforts to do so had led to confusing and contradictory results. "Now, through this case and others, that principle is backed up by the courts". For private employers in IN, however, the time is now to take proactive steps to ensure sexual orientation is treated the same as any other protected class - this includes reviewing your written policies, handbooks, training sessions, workplace investigations, hiring methods, discipline and discharge procedures, and all other aspects of your human resources activities.

To view the full article, register now. But the issue of whether Title VII of the Civil Rights Act prohibits workplace discrimination against gays and lesbians is still red hot in other federal circuits. To the 7th Circuit, if the law prohibits discrimination on the basis of the race of someone with whom a plaintiff associates, it also prohibits discrimination on the basis of the sex with whom a plaintiff associates.

Title VII of the Civil Rights Act of 1964 makes it unlawful for employers to discriminate on the basis of a person's sex.

"They punted" the issue of whether Title VII covers sexual orientation discrimination, said Richard B. Cohen, an attorney with FisherBroyles L.L.P.in NY. The key holding from the 7th Circuit, in the majority opinion, Judge Posner's concurrence and a separate concurrence from Judge Joel Flaum, is that sex discrimination encompasses sexual orientation discrimination.

Hively filed a Title VII lawsuit in federal court alleging she was denied full time employment because of her sexual orientation, but the case was immediately dismissed because Seventh Circuit precedent asserted that Title VII anti-discrimination laws apply to sex but not sexual orientation. It followed a similar ruling by the 11th Circuit Court of Appeals in 2000.

While possible that the Supreme Court or Congress will step in and reverse this trend, as a recent court stated, "it seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against exclusively based on who they date, love, or marry".

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