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Oct. 11 — The continuing legal debate over federal workplace protections for the LGBT community will soon be front and center before a full panel of U.S. Court of Appeals for the Seventh Circuit judges ( Hively v. Ivy Tech Cmty. Coll. , 7th Cir., No. 15-1720, rehearing en banc ordered 10/11/16 ).
The issue of whether Title VII of the 1964 Civil Rights Act prohibits workplace sexual orientation bias is also pending before the Second and Eleventh circuits. Title VII, which generally applies to a broad range of public and private employers and unions, currently contains no express sexual orientation protections.
The U.S. Supreme Court may ultimately decide the issue if Congress doesn’t pass the Equality Act (S. 1858, H.R. 3185), which would amend the Civil Rights Act to explicitly include sexual orientation and gender identity protections in employment, public accommodations, education and housing.
Federal lawmakers have repeatedly rejected attempts to make such an amendment in the Title VII context since the mid-1990s, when the proposed legislation was known as the Employment Non-Discrimination Act.
Certain federal contractors are expressly prohibited from discriminating against employees and applicants based on sexual orientation under a 2014 executive order issued by President Barack Obama.
In July, a three-judge panel of the Seventh Circuit upheld the dismissal of lesbian college instructor Kimberly Hively’s claims under Title VII. She alleged that Ivy Tech Community College denied her a full-time position and promotions because of her sexual orientation.
The panel ruled that it was bound by case law that has rejected sexual orientation bias claims under Title VII. However, at least two judges on the panel suggested that the Seventh Circuit needs to reconsider that issue, citing the Supreme Court’s approval of same-sex marriage and other societal changes. The court announced Oct. 11 that it’s going to rehear that case, with all Seventh Circuit judges participating.
Oral argument has been set for Nov. 30.
“For too long, LGBT employees have been forced to conceal their true identity at work out of fear of backlash and discrimination,” Hively’s attorney, Greg Nevins, said in an Oct. 11 statement. “It’s a modern day ‘don’t ask, don’t tell’ policy in the workplace. Not only is it wrong, it’s illegal—and we need the court to make it clear.” Nevins is with Lambda Legal in Atlanta.
In 2015, the Equal Employment Opportunity Commission took the position for the first time in Baldwin v. Foxx that Title VII’s prohibition against sex discrimination includes sexual orientation bias.
The agency, which enforces Title VII, filed an amicus brief urging the full Seventh Circuit to reconsider Hively. An EEOC spokeswoman declined to comment on the court’s rehearing order.
“We’ll let our legal pleadings do the talking for us,” she told Bloomberg BNA Oct. 11.
Jeffery Fanter, a spokesman for Ivy Tech, told Bloomberg BNA Oct. 11 that the college “steadfastly denies” Hively’s allegations of sexual orientation bias, which the Seventh Circuit recognized as “beyond the scope” of Title VII.
The college “does not condone, and in fact explicitly prohibits, employment discrimination based upon a person’s sexual orientation,” he said. “Ivy Tech recognizes the importance of this issue and will continue to conduct its operations in a manner that is consistent with its statement of values and its policies prohibiting discrimination.”
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