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Will the 7th Circuit Extend Civil Rights Protections to Gay and Lesbian Workers?

The Supreme Court ruled last year that gays and lesbians were entitled to equal marriage rights. But when it comes to the right to work free from discrimination, federal protections currently don't cover LGBTQ employees.

That could soon change in the Seventh Circuit, however, as the en banc court hears a case today that could result in employment discrimination protections being extended to gay and lesbian workers.

LGBTQ Workers and the Civil Rights Act

The case at issue is Hively v. Ivy Tech Community College. Adjunct professor Kimberly Hively alleges that she was denied a full-time job at the college, and that the college eventually let her contract lapse, because she is a lesbian.

Hively argued that such discrimination violates Title VII of the Civil Rights Act, which forbids discrimination on the basis of sex. Discrimination against gays and lesbians, the argument goes, is discrimination on the basis of sex, because it punishes LGBTQ workers for breaking with traditional gender norms, mainly though loving someone of the same sex.

That's an interpretation of sex discrimination which the Equal Employment Opportunity Commission has recently embraced, but which the Seventh Circuit rejected. Acknowledging EEOC criticism that "this court and others have continued to reflexively declare that sexual orientation is not cognizable under Title VII without due analysis or consideration of intervening case law," the three-judge panel nonetheless found in July that Hively had asserted a sexual orientation discrimination claim that was "beyond the scope of the statute."

Taking on a "Jumble of Inconsistent Precedents"

The court's en banc rehearing "gives the 7th Circuit a historic opportunity to fix what three of its own judges have called 'a jumble of inconsistent precedents' and a 'confused hodge-podge of cases,'" Alison Frankel writes for Reuters.

It highlights the "weird legal paradox," as Frankel calls it, between Title VII's sex-discrimination prohibition, which includes the Supreme Court's 1989 ruling in Price Waterhouse v. Hopkins that discrimination based on sexual stereotypes counts as sex discrimination, and circuit court rulings that sexual orientation discrimination is categorically not covered by the act.

Seventh Circuit Judge Ilana Rovner emphasized these contradictions in the earlier Hively opinion:

[C]ourts have gone about this task in different ways-either by disallowing any claims where sexual orientation and gender non-conformity are intertwined, (and, for some courts, by not allowing claims from lesbian, gay, or bisexual employees at all), or by trying to tease apart the two claims and focusing only on the gender stereotype allegations. In both methods, the opinions tend to turn circles around themselves because, in fact, it is exceptionally difficult to distinguish between these two types of claims.

"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 opinion reads.

Yet, despite this, the panel concluded that it was still bound by precedent and must reject Hively's suit.

Judge Rovner's opinion has given LGBTQ advocates hope that those precedents could be overruled, however. "I sense Judge Rovner was troubled by the fact her hands were tied," Lambda Legal lawyer Kenneth Upton told Frankel. "Sexual orientation doesn't have anything to do with employees' ability to do their job," according to Upton. "It shouldn't be a determiner of whether you should continue to be employed."

If the Seventh agrees, finding that Title VII extends to gays and lesbians, it will become the first circuit court to embrace greater employment protections for LGBTQ workers -- and it will make civil rights history.

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