Those of us in the LGBTQ community will never forget June 26, 2015, the day that the Supreme Court issued its decision in Obergefell v. Hodges, holding that the fundamental right to marry is guaranteed to same-sex couples by the Fourteenth Amendment of the United States Constitution. Obergefell represented acceptance of the notion that we and our relationships deserve, as Justice Kennedy stated, "equal dignity in the eyes of the law."
On April 4, the Seventh Circuit issued another momentous decision as it became the first U.S. federal court to broaden the scope of the Civil Rights Act of 1964 to include employment discrimination based on sexual orientation. This landmark ruling means that LGBT workers now have the same rights under Title VII as women, minorities, and other protected groups. The 8-3 decision in Kimberly Hively v. Ivy Tech Community College represents a significant step forward in the fight for LGBTQ equality in the United States, and offers much broader workplace protections for gay, lesbian, transgender, and queer workers and employees.
Woman Passed Over for Promotion after Kissing Girlfriend in Parking Lot
In her suit against Ivy Tech, Kimberly Hively claimed that in 2009 someone reported her to the school's administration after seeing her give a quick goodbye kiss to her girlfriend in their car as she was being dropped off for work. An administrator called her at home, said she'd been seen "sucking face," and reminded her of her duty to appear professional.
After that call came several years of being passed over for full-time teaching positions, even though Hively was fully qualified and earned her graduate degree in 2011. Instead, she had to re-apply to teach classes each semester. The case alleges other employees hired after her were promoted to full-time employment, while Hively had her hours cut. In 2014, she was not hired back at all and now teaches high school math.
Seventh Circuit: Gender and Sexual Orientation Equally Protected
After the trial court dismissed the case, Hively appealed and the Seventh Circuit granted a rare en banc hearing. In response, Hively's former employer, Ivy Tech, continued to assert its defense that, while Title VII bars discrimination based on gender, it is separate and distinct from sexual orientation.
For her part, Hively argued that it was actually gender discrimination on Ivy Tech's part because the adverse actions the college took against her were the result of her, a woman, kissing another woman. As such, the college violated Title VII.
Several of the judges took issue with Ivy Tech's position, with U.S. Circuit Judge David Hamilton asking. "How do courts draw the line you want us to draw without sounding arbitrary and, occasionally, silly?"
That initial sentiment seems to have carried the day - and most of the panel. Writing for the majority, and citing recent U.S. Supreme Court rulings and "common sense," Chief Circuit Judge Diane P. Wood wrote that "it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex" and that "the time has come to overrule our previous cases that have endeavored to find and observe that line."
Justice Richard Posner's concurring opinion was particularly moving, as he noted the evolution of society's perception of sexual orientation, stating that, "We now understand that homosexual men and women (and also bisexuals, defined as having both homosexual and heterosexual orientations) are normal in the ways that count...The compelling social interest in protecting homosexuals (male and female) from discrimination justifies an admittedly loose 'interpretation' of the word 'sex' in Title VII to embrace homosexuality: an interpretation that cannot be imputed to the framers of the statute but that we are entitled to adopt in light of (to quote Holmes ' what this country has become...'"
What Hively means for LGBTQ Workplace Rights
Though a major milestone, the Seventh Circuit's ruling is by no means the final word on the issue of Title VII as it applies to sexual orientation. For one, there may well be an appeal to the U.S. Supreme Court. For another, the Seventh Circuit's opinion creates a split with the other federal courts that have not viewed this issue in the same way.
That being said, a previously closed door has now been opened - and may be much easier to kick down completely in the future.
For LGBTQ employees, the decision means there is now judicial precedent for protecting their rights under Title VII. One of the highest and most respected courts in the country has said it is "common sense" that Title VII bars discrimination on the basis of both gender and sexual orientation, because they are intrinsically linked.
Employers should see the writing on the wall and understand that the federal law may soon hold them accountable for discrimination and harassment directed at LGBTQ employees. This may take education and training - or just "common sense" - but the time has come.
LGBTQ employees likely know that workplace discrimination and harassment can take many forms, both overt and subtle. This includes:
- Not hiring qualified applicants based solely on their sexual orientation;
- Asking about sexual orientation during interviews;
- Passing qualified LGBTQ employees over for promotion in favor of more inexperienced colleagues;
- Allowing or participating in denigrating behavior or speech towards LGBTQ employees;
- Disciplining LGBTQ employees more harshly and for less serious offenses than other workers;
- Demoting or terminating a current employee who then discloses they are LGBTQ;
- Creating a hostile work environment to force an LGBTQ employee to quit;
- Taking action (demotion, termination) against a transgender employee who is transitioning;
- Retaliating against an LGBTQ employee who complains about violations of Title VII and other applicable labor and employment laws.
Employees, regardless of sexual orientation, gender, or race, have the right to a safe, productive workplace where they are allowed to advance according to their hard work, experience, and skill. When this does not happen, there are legal remedies. And, as seen with the Seventh Circuit, these legal options are expanding.
Often, speaking confidentially with an experienced employment litigator with knowledge and experience with LGBTQ-specific issues can help an employee assess his or her individual situation and develop a strategy for making it better. Often, this does not go as far as litigation, and there is a range of options available, up to and including filing a lawsuit or complaint with the Equal Employment Opportunity Commission.