October 11, 2016 at 8:24 pm EDT | by Chris Johnson
Court to reconsider if anti-gay bias barred under Title VII
hate crime, gay news, Washington Blade

A federal appeals has agreed to reconsider whether anti-gay discrimination is barred under current law.

In a move that could reshape the legal landscape for gay workplace protections, a federal appeals court on Tuesday agreed to reconsider its determination that current civil rights law doesn’t protect gay people from workplace discrimination.

The U.S. Seventh Circuit Court of Appeals in Chicago granted Tuesday an “en banc” rehearing before the full court to review a three-judge panel’s decision that the prohibition on gender discrimination in Title VII of the Civil Rights Act of 1964 doesn’t apply to gay, lesbian and bisexual people. Oral arguments in the rehearing are set for Nov. 30.

The litigation, Hively v. Ivy Tech, was filed in 2014 by by Kimberly Hively against her former employer, the Indiana-based Ivy Tech Community College, where she worked as a part-time professor. The lawsuit alleged the school violated Title VII of the Civil Rights Act of 1964 by denying Hively full-time employment and promotions because she’s a lesbian. Ivy Tech has insisted it didn’t engage in discrimination.

“I am delighted that I will have my day in court, and hopeful that the judges will see that I was treated unfairly because I am a lesbian,” Hively said in a statement. “If I had been a man attracted to women, I truly believe I would have been offered a full-time position and given promotions. Today’s decision gives me hope – hope for me, and for all other LGBT teachers, that we will not have to suffer the same unfair bias in the future.”

In July, U.S. Circuit Judge Ilana Rovner wrote on behalf of the three-judge panel reviewing the case “it seems illogical to entertain” the idea laws against sex discrimination cover gender non-conformity, but not sexual orientation. However, she said precedent in the judicial circuit precludes the court from issuing a new ruling.

“Perhaps the writing is on the wall,” Rovner writes. “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 solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it; many of the federal courts to consider the matter have stated that they do not condone it; and this court undoubtedly does not condone it. But writing on the wall is not enough.”

Federal appeals courts have ruled the prohibition on gender discrimination under Title VII also bars anti-transgender discrimination, which was the basis for the 2012 U.S. Equal Employment Opportunity Commission decision in Macy v. Holder. Although last year the EEOC also determined Title VII applies to gay, lesbian and bisexual people, no federal appeals court has made that claim (although trial courts and state courts have reached that conclusion).

The 7th Circuit decision to rehear the Hively case could lead to the first-ever ruling from a federal appeals courts that anti-gay workplace discrimination is prohibited, which would enhance protections for gay, lesbian and bisexual people.

Greg Nevins, the attorney representing Hively and Lambda Legal’s employment fairness strategist, said the 7th Circuit has the chance to make clear anti-gay workplace discrimination is against the law.

“For too long, LGBT employees have been forced to conceal their true identity at work out of fear of backlash and discrimination,” Nevins said. “It’s a modern day ‘Don’t Ask, Don’t Tell,’ policy in the workplace. Not only is it wrong, it’s illegal — and we need the court to make it clear. We are thrilled to have this opportunity to make the case for Kimberly Hively and for all lesbian, gay and bisexual people who are good, hard-working employees. Whether or not someone may pass for straight at work, none of us should have to live in the closet.”

The Hillary Clinton campaign has said she supports efforts to encourage the courts to interpret the prohibition on sex discrimination in current law applies to sexual orientation discrimination, but the Obama administration hasn’t taken a position. Because the oral argument in the rehearing is set in November, the litigation presents President Obama and the Justice Department with the opportunity to weigh in before he leaves the White House.

Tico Almeida, president of the LGBT group Freedom to Work, said the time has come in the aftermath of the 7th Circuit decision to rehear the Hively case for the Justice Department to speak out before the end of the administration.

“It’s great to know that Secretary Hillary Clinton stands with LGBT Americans in our fight for fairness under the law, and her campaign has promised in writing that her administration would support legal efforts in federal court to confirm that sexual orientation discrimination is a form of sex discrimination already banned by the Civil Rights Act. Rather than waiting until next year, the Justice Department should take a strong stand now.”

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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