In a stunning decision by a federal appeals court in Chicago, a woman’s lawsuit against a community college was thrown out because she claimed her sexual orientation was protected by existing civil rights law, and the judges ruled, it was not.
U.S. Circuit Judge Ilana Rovner of the 7th Circuit Court of Appeals, an appointee of George W. Bush, wrote in the ruling that there was no precedent for sexual orientation to be protected against discrimination under Title VII of the Civil Rights Act of 1964.
The problem, she cited, is that Congress has repeatedly and explicitly rejected legislation to expand protections to include sexual orientation discrimination, and the Supreme Court has declined to address the issue.
Rovner, along with Judge William Bauer, noted the paradox of the “legal landscape in which a person can be married on Saturday and then fired on Monday for just that act,” but decided against part-time college professor Kimberly Hively, by citing a series of rulings from the appeals court beginning in 1984 through 2000, in which the court found that anti-LGBT discrimination was not covered by Title VII. Hively sued Ivy Tech Community College, arguing it refused to promote her to full-time professor because she is lesbian.
Rovner even cited the Equal Employment Opportunity Commission’s 2015 decision to interpret TitleVII as covering sexual orientation: “The idea that the line between gender non‐conformity and sexual orientation claims is arbitrary and unhelpful has been smoldering for some time, but the EEOC’s decision … threw fuel on the flames.”
“It seems illogical to entertain” that concept but not sexual orientation,” Rovner conceded, but wrote that given the precedent in the judicial circuit, the panel cannot justify a new ruling.
“Perhaps the writing is on the wall. 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 agency tasked with enforcing Title VII does not condone it; many of the federal courts to consider the matter have stated that they do not condone it; and this court undoubtedly does not condone it. But writing on the wall is not enough.”
Attorney Greg Nevins told the Washington Blade that Lambda Legal is “considering both options” available: to seek “en banc” reconsideration before the full 7th Circuit, or to file a new petition with the U.S. Supreme Court “for certiorari,” Latin for “appeal to a higher court.”
“Thankfully this incorrect decision is not the final word,” said Tico Almeida, president of the LGBT group Freedom to Work, to the Blade.
“Our LGBT movement is still waiting on rulings in similar cases pending before other federal circuit courts, and we should keep pushing until we get this issue to the U.S. Supreme Court,” said Almeida.
Read the full ruling from the 7th Circuit here.