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Appeals Court Rules That Title VII Bars Sexual Orientation Bias in Employment

Ruling in the case of an Indiana community college instructor, a federal appeals court has held that employment bias based on sexual orientation is covered by Title VII's prohibition against sex discrimination.

The full U.S. Court of Appeals for the 7th Circuit, based in Chicago, ruled 8-3 to revive a suit filed by Kimberly Hively, a lesbian and a part-time adjunct instructor at Ivy Tech Community College, a public institution with some 30 campuses statewide. She alleges that the college refused to hire her for six full-time positions she sought over five years because of her sexual orientation. 

(A rigorous search of court papers in the case did not reveal what department or field of study Hively taught at Ivy Tech, but she is reportedly now working as a high school math teacher in South Bend. UPDATE 9:20 a.m.: I've been told that Hively taught math at Ivy Tech.)

Ivy Tech sought to dismiss Hively's suit on the basis that the protection against workplace sex discrimination in Title VII of the Civil Rights Act of 1964 does not cover sexual orientation. A federal district court and a three-judge panel of the 7th Circuit ruled for the college on those grounds.

But in its April 4 decision in Hively v. Ivy Tech Community College of Indiana, the full 7th Circuit court ruled that sexual orientation was covered by the federal civil rights law, making it the first federal appeals court to so rule.

"The question before us is not whether this court can, or should, 'amend' Title VII to add a new protected category to the familiar list of 'race, color, religion, sex, or national origin'," Chief Judge Diane P. Wood wrote for the majority. 

Instead, the court must decide whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex, she said.

Ivy Tech argued that Congress has frequently considered adding sexual orientation to Title VII's protections but has stopped short of doing so. 

"In our view, however, it is simply too difficult to draw a reliable inference from these truncated legislative initiatives to rest our opinion on them," Wood said. "The goalposts have been moving over the years, as the Supreme Court has shed more light on the scope of the language that already is in the statute: no sex discrimination."

Wood noted that the Equal Employment Opportunity Commission took the position in 2015 that Title VII's bar on sex discrimination encompassed sexual orientation. She also noted, among other cases, a 2016 decision by a federal district court in Connecticut that allowed a Hartford teacher's claim of sexual orientation discrimination against the Hartford school district to go forward under Title VII.

Judge Diane S. Sykes, in a dissent joined by Judges William J. Bauer and Michael S. Kanne, called the case "momentous," but said the majority's result "is a statutory amendment courtesy of unelected judges."

"It's understandable that the court is impatient to protect lesbians and gay men from workplace discrimination without waiting for Congress to act," Sykes said. "Legislative change is arduous and can be slow to come. But we're not authorized to amend Title VII by interpretation."

Judge Richard A. Posner, a leading judicial conservative on many issues, signed the majority opinion and responded to Sykes's dissent in a concurrence.

Title VII, "now more than half a century old, invites an interpretation that will update it to the present, a present that differs markedly from the era in which the act was enacted," Posner said. "I don't see why firing a lesbian because she is in the subset of women who are lesbian should be thought any less a form of sex discrimination than firing a woman because she's a woman." 

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