Is it illegal for an employer to discriminate against a person because he is gay or she is lesbian? After the Supreme Court’s decision in the same-sex marriage case, you would think that the answer would be an obvious “yes.” But it’s not that simple. In fact, until very recently almost all of the Circuit Courts that have considered the issue have held that discrimination based on sexual orientation does not violate Title VII, which is part of the 1964 Civil Rights Act. Title VII prohibits employment discrimination on the basis of “race, color, religion, sex, or national origin.” So if Mr. Smith is fired because he is gay, has he been discriminated on the basis of “sex”?
This was the issue before the 7th Circuit, sitting en banc in a recent case. Kimberly Hively alleged in her suit that she was passed over for promotion, and later terminated by Ivy Tech Community College for the sole reason that she was openly lesbian. By a vote of 8-3, the court held that discrimination based on sexual orientation is a form of sex discrimination. The opinions of the judges, both majority and dissent, make for interesting reading.
The majority opinion is written by Judge Diane Wood, who I knew when she and I were both undergrads at UT Austin. She points out in her opinion the weirdness of the current legal landscape whereby a gay person “can be married on Saturday and then fired on Monday for just that act.” Citing the same-sex marriage case and other Supreme Court cases on analogous topics, the majority concludes that discrimination based on sexual orientation is a subset of sex discrimination and, therefore, equally illegal.
Judge Posner’s erudite concurring opinion overtly embraces the idea that judges can, and should, re-interpret statutes as the culture changes. He cites his own life experience:
It is well-nigh certain that homosexuality, male or female, did not figure in the minds of the legislators who enacted Title VII. I had graduated from law school two years before the law was enacted. Had I been asked then whether I had ever met a male homosexual, I would have answered: probably not; had I been asked whether I had ever met a lesbian I would have answered “only in the pages of A la recherche du temps perdu.” [Remembrance of Things Past by Marcel Proust]. Homosexuality was almost invisible in the 1960s. It became visible in the 1980s as a consequence of the AIDS epidemic; today it is regarded by a large swathe of the American population as normal.
The three dissenting judges were equally eloquent in urging the court not to do for Congress what Congress should do for itself:
It’s understandable that the court is impatient to protect lesbians and gay men from workplace discrimination without waiting for Congress to act. Legislative change is arduous and can be slow to come. But we’re not authorized to amend Title VII by interpretation. The ordinary, reasonable, and fair meaning of sex discrimination as that term is used in Title VII does not include discrimination based on sexual orientation, a wholly different kind of discrimination.
This case may end up before the Supreme Court. If it gets there, it will have implications not only for gay and lesbian employees, but also transgender employees and students.
The case is Hively v. Ivy Tech Community College, decided by the 7th Circuit on April 4, 2017. We found it at 2017 WL 1230393.
DAWG BONE: AS THE CULTURE CHANGES, THE LAW FOLLOWS….EVENTUALLY.
File this one under: LABOR AND EMPLOYMENT
Tomorrow: a radical idea for your consideration….