U.S. lawsuit has national implication for LGBT employment rights

Kim Hively

 When the Supreme Court struck down the state bans against same-sex marriage, last year, many observers, amidst the hurrahs and cheers, assumed that the gay and lesbian community had hit the final frontier in their struggle for civil rights. Yet, wiser heads had deemed that while the United States had come of age, in this area of human rights, there was much more work to be done, to secure full rights for that community.

Almost forgotten last week, with speculation about the cabinet of President-elect Donald J. Trump, was the Wednesday hearing of the whole court of the Chicago based Seventh Circuit Court of Appeals, in one of the most salient cases, in fact, what could best be the last test case against LGBT employment discrimination.

The federal lawsuit, at hand, is Hively v. Ivy Tech, where a lesbian part-time adjunct faculty member, named Kim Hively, taught at a South Bend, Ind. community college, Ivy Tech, where she  had repeatedly tried for a full-time promotion, and was repeatedly rejected; despite concurrently earning a master's degree. She claims that she was rejected because she was gay; then the school, did not schedule her to teach any classes, thus in effect, firing her.

In a statement given to the South Bend Tribune, college spokesman, Jeff Fanter, said: “Ivy Tech Community College rejects discrimination of all types, and in fact explicitly prohibits, employment discrimination based upon a person’s sexual orientation. In 2014, Kimberly Hively alleged that she was not promoted due to her sexual orientation. Ivy Tech takes such a claim very seriously and steadfastly denies Hively’s allegations.”

At the heart of the case is whether Title VII of the Civil Rights Act of 1964 says that there can be no discrimination in the workplace based on sex. Yet, that definition has never been expanded to include sexual orientation, with a series of earlier decisions.

As Slate noted in its coverage,”Title VII has, from the start, included a ban on discrimination “because of sex.” In 1989’s Price Waterhouse v. Hopkins, the Supreme Court defined sex discrimination to include sex stereotyping—mistreating employees because they fail to comply with gender norms. Since then, a number of courts have held that this expansive definition of sex discrimination may also encompass anti-gay discrimination.”

To cloud the judicial waters, “In 2015’s Baldwin v. Foxx, the Equal Employment Opportunity Commission declared that sexual orientation discrimination is sex discrimination under Title VII.”

Representing Hively is Greg Nevins, director of the Workplace Fairness Program at Lambda Legal, who has noted in numerous media interviews the importance of seeing this as landmark case, As he told the South Bend paper: "You can't fail to promote a woman for doing the exact same thing a man could do," meaning dating a woman, the attorney said by telephone after the hearing. "They understand the argument," Nevins said. "A few years ago, this argument wasn't getting much currency."

WIth the current climate of uncertainty, vulnerable groups, such as gay people, in advance of the incoming Trump administration, have wondered if their past gains would be compromised. In an interview with the Chicago Reader, Nevins said: “The federal appellate courts have not agreed with that interpretation with respect to sexual orientation. With gender identity there's actually a lot of overlap—there are two federal circuits that have ruled in employment cases and two others that have ruled in other [cases] under other federal statutes that sex discrimination includes discrimination against transgender individuals.”

Greg Nivens

While the timeline for a decision, is anyone’s guess, the decision could affect the entire country.  Nevins did say that with the incoming Trump decision, there might be a blowback, but trusts in judicial thoughtfulness, when he notes, ”I guess the real question is: Are they thoughtful? If they're thoughtful judges who follow the law, then I wouldn't be worried about it. If they were ideologues with a record of railing against things from a political standpoint and not from a carefully reasoned judicial standpoint, obviously we would be concerned,” he told the Reader.

During the oral arguments, of the eleven judges there was evidence of that when Judge Diane Wood said,  after Nevins’ opening statement: “Isn’t there a stereotype built into” all anti-gay discrimination”, and, furthermore, “That if you’re biologically female, then you must be attracted to men?”

Building on that statement, Nevins pointed to the Baldwin case of sex stereotyping, and if it could play a role in discrimination, then why not sexual orientation?  While cautiously optimistic regarding the case, Nevins does not rule out the possibility of taking, if rejected, the case to the United States Supreme Court.

Betty Tsamis, a Chicago based employment rights attorney, who has been both advocate, and attorney on cases involving LGBT rights, told me, in an emailed statement, “Gay and lesbian employees in Illinois already have protection against job discrimination through the Illinois Human Rights Act. But this is not sufficient and federal law provides for more uniformity and a wider array of damages.”

Nivens concurs when he emphasizes that “Judges shouldn’t ignore the plain meaning of a statute just because Congress is not sure what when it wants the statute to mean.”

Betty Tsamis

Tsamis predicts that,  “If Hively's appeal is granted she will either have to proceed at trial and win, or settle her case prior to trial. A win for Hively will extend protection to gay and lesbian employees in Illinois, Indiana, and Wisconsin. Notwithstanding, the 7th Circuit will issue an opinion making clear whether or not the 7th Circuit believes that federal law enjoins adverse job action because of sexual orientation.”