Despite gains, LGBT protections remain a patchwork in US

Darin HammondApr 06, 2017

A dissenting opinion criticizes the majority on a Chicago federal appeals court for becoming the first to rule that the 1964 Civil Rights Act protects LGBT employees from workplace discrimination.

CHICAGO (AP) — A ruling by a US appeals court in Chicago could reopen the question of whether the 1964 Civil Rights Act's protections apply to LGBT workers in the same way they bar discrimination based on someone's race, religion or national origin.

Existing federal law specifically cites race, color, religion, sex, and national origin as protected groups in the workplace, but is mum about whether that also covers sexual orientation.

The Supreme Court typically agrees to take up an issue when it sees judicial discord between nation's 13 USA circuit courts.

The 7th Circuit only has jurisdiction over Illinois, Indiana, and Wisconsin, which means the ruling will not apply nationally.

"This decision is game changer for lesbian and gay employees facing discrimination in the workplace and sends a clear message to employers: it is against the law to discriminate on the basis of sexual orientation", said Greg Nevins, a Lambda Legal strategist.

In her lawsuit, Hively said that Ivy Tech Community College in South Bend passed her over for a permanent position and refused to renew her contract as an adjunct professor after school administrators learned she is a lesbian.

Writing for the majority, the Seventh Circuit's Chief Judge Diane Wood (a Clinton appointee) acknowledged that the decision in Hively v. Ivy Tech required taking a "fresh look" at previous rulings by federal appeals courts "in light of developments at the Supreme Court extending over two decades".

Hively said after Tuesday's ruling that she agreed to bring the case because she felt she was being "bullied".

But several of those judges came down on the side of LGBTQ protection, including Judge Richard Posner, who was appointed by Ronald Reagan.

Ivy Tech said on Tuesday night that it does not intend to appeal the case to the Supreme Court.

The decision comes as President Donald Trump's administration has begun setting its own policies on LGBT rights. "We congratulate plaintiff Kimberly Hively, Lambda Legal and all the attorneys who helped achieve this victory". In January President Trump promised not to revoke President Obama's executive order banning federal contractors from discriminating against workers due to their sexual orientation or identity, but last week Trump quietly rolled back some of those protections.

The dissent was written by Judge Diane Sykes, who though conceding that Hively "was treated unjustly" if she had been fired due to being a lesbian, argued that "Title VII does not provide a remedy for this kind of discrimination". He said the Seventh Circuit's approach to the Civil Rights Act was a momentous shift from past cases. "That means that it falls within Title VII's prohibition against sex discrimination".

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