August 5, 2016 at 7:55 pm EDT | by Chris Johnson
Despite court ruling, EEOC to continue taking anti-gay bias claims
EEOC, Equal Employment Opportunity Commission, gay news, Washington Blade

The EEOC will continue to accept claims of anti-gay discrimination as gender discrimination. (Image public domain)

Despite a federal appeals court ruling that determined current law provides “no protection from nor redress for discrimination on the basis of sexual orientation,” the U.S. agency charged with enforcing federal workplace civil rights law will continue to accept and investigate charges of anti-gay employment discrimination in the court’s jurisdiction.

Justine Lisser, a spokesperson for the U.S. Equal Employment Opportunity Commission, said Friday her agency will “continue to investigate cases despite an adverse decision” from the U.S. Seventh Circuit Court of Appeals contrary to the commission’s policy of investigating claims of anti-gay discrimination as gender discrimination.

The response, Lisser said, comes from the Office of Field Programs, which oversees all the district offices and sets policy for investigations, and is based on the fact the commission “enforces laws that apply nationwide.”

“Unless the commission issues policy to the contrary, we will follow current commission policy and continue to accept and investigate charges alleging sex discrimination that is based on sexual orientation or gender identity,” Lisser concluded.

Last week, a three-judge panel on the Seventh Circuit determined Title VII of Civil Rights of Act of 1964 provided no recourse for Kimberly Hively, a lesbian law professor alleging workplace discrimination at Ivy Tech Community College. The school has denied the allegations.

U.S. Circuit Judge Ilana Rovner, the judge writing the decision, admitted “it seems illogical to entertain” the idea laws against sex discrimination cover gender non-conformity, but not sexual orientation, but nonetheless refused to change precedent in the jurisdiction to allow the claim of anti-gay discrimination to go forward.

The decision runs contrary to the EEOC’s determination last year in the case of Baldwin v. Foxx, which started a precedent enabling the agency to take and investigate claims of sexual-orientation workplace bias as gender discrimination. In 2011, the agency found in the case of Macy v. Holder transgender discrimination constitutes gender discrimination under Title VII.

Lambda Legal, which represents Hively, has said it intends to pursue an “en banc” review of the three-judge panel’s decision before the full Seventh Circuit. The judicial circuit consists of Wisconsin and Illinois, which have state laws barring anti-gay discrimination, and Indiana, which doesn’t.

Even though the three-judge panel refused to change precedent within the 7th Circuit, the EEOC can still mediate with companies that engage in anti-gay discrimination to obtain conciliation, or else take those companies to federal court for a costly legal battle.

Despite EEOC policy, many LGBT advocates have asserted there’s no recourse for anti-LGBT workplace discrimination under current law because neither sexual orientation nor gender identity is explicitly included under federal civil rights law. These advocates often assert the maxim a gay person can be married on Sunday, then fired on Monday when that union becomes public.

Tico Almeida, president of the LGBT group Freedom to Work, said Indiana workers who feel they’ve faced anti-LGBT employment discrimination should file claims with the EEOC even without explicit protections under federal law.

“If a gay, lesbian or bisexual Hoosier is married on Sunday and fired on Monday, we recommend they contact an attorney and file a Title VII sex discrimination claim with the EEOC’s office in Indianapolis,” Almeida said. “The three judges from the Hively decision are not the final word on this legal question, and in the meantime, hundreds of LGBT workers have recently won recourse by fighting back against discrimination and filing claims at the EEOC.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

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