Wednesday, April 5, 2017
For the first time, the U.S. Court of Appeals ruled, in an 8-3 decision, that the Civil Rights Act of 1964 protects lesbian, gay, bi-sexual, and transgender employees from workplace discrimination. The Seventh Circuit recognized that discrimination based upon one's perceived or actual sexual orientation is a civil rights violation. The decision of Hively v. Ivy Tech was heard en banc after a three judge panel earlier ruled against the Plaintiff, Kimberly Hively, who claimed that she experienced workplace discrimination based upon her identification as a lesbian.
Historically, opponents argued successfully that LGBT individuals could not benefit from discrimination protections because discrimination based upon sexual orientation was not specifically mentioned in the act. As recently as March 10, 2017, the 11th circuit wrote that it was bound by prior case law that limited protections to straight men and women. "Because Congress has not made sexual orientation a protected class, the appropriate venue for pressing the argument [that LGBT individuals are protected] raised by the Commission and the dissent is before Congress, not this court." A dissenting opinion forecast the reasoning used in Hively.
Hively's Judge Wood declared on Tuesday that "For many years, the court of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person's sexual orientation. We conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination." Judge Wood continues: "It would take considerable calisthenics to remove the 'sex' from 'sexual orientation'."
Ms. Hively was represented by Lambda Legal who undoubtedly will next argue the case before the US Supreme Court. Watch for more posts on this case.