For the first time, a federal appellate court has found that gays and lesbians are protected from employment discrimination under federal law. The landmark finding is expected to ultimately bring the issue before the U.S. Supreme Court.
The Seventh Circuit Court of Appeals on Tuesday ruled 8-3 that a case by Indiana college professor Kimberly Hively, who contends she was discriminated against by an Indiana university because she is a lesbian, can proceed. A previous hearing of the case in a trial court resulted in a finding that Title XII of the Civil Rights Act of 1964 did not prohibit discrimination based on sexual orientation.
However, Tuesday’s ruling opined the opposite, that “discrimination on the basis of sexual orientation is a form of sex discrimination.” Judge Diane Wood wrote that an adverse employment decision based on the way a woman dresses, speaks or acts — including who she dates or marries — qualifies as sex discrimination.
Wood wrote: “Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): She is not heterosexual.
“Hively’s claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces,” Wood continued, “such as fire departments, construction and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man).”
Hively contends conditions at Ivy Tech Community College went downhill in 2009, after she kissed her girlfriend goodbye on campus. She was admonished by a supervisor and went on to be denied several promotions and opportunities for full-time employment.
Hively filed suit in 2014, but her case was dismissed by the trial court, a decision upheld by a panel of the Seventh Circuit. Lambda Legal appealed to the full appellate court, leading to this week’s ruling.
“I have been saying all this time that what happened to me wasn’t right and was illegal. Now I will have my day in court, thanks to this decision,” Hively said in a statement Tuesday. “No one should be fired for being lesbian, gay or transgender like happened to me, and it’s incredibly powerful to know that the law now protects me and other LGBT workers.”