The Seventh Circuit Court of Appeals in Chicago ruled Tuesday that Title VII prohibits discrimination against lesbian, gay, bisexual, and transgender employees. The decision sets up an eventual decision by the Supreme Court concerning the meaning and breath of the Civil Right Act of 1968.
The suit was brought in August, 2015, in the Northern District of Indiana by a South Bend teacher, Kimberly Hively, who alleged that Ivy Tech Community College didn’t hire her full time because she was a lesbian in violation of Title VII. The case was dismissed by the trial court finding that Title VII does not protect employees from discrimination based on sexual orientation. Supported by Lambda Legal, Hively appealed the case to the Seventh Circuit arguing that discrimination based on sexual orientation is sex discrimination under Title VII. In July of last year, the U.S. Seventh Circuit Court of Appeals affirmed the trial court judgment in a 42-page decision. The Court then determined to hear the case en banc.
In an 8-to-3 decision, the Court of reversed the decision of its three-judge panel. The debate in the Hively case centered on the meaning of the word “sex” in Title VII. Writing for the majority, Judge Rudy Lozano stated “discrimination on the basis of sexual orientation is a form of sex discrimination,” adding “it would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.'”
The dissent argued that the majority’s opinion violated the clear meaning of the law. “We are not authorized to infuse the text with a new or unconventional meaning or to update it to respond to changed social, economic, or political conditions.” But the majority countered that “We understand the words of Title VII differently not because we’re smarter than the statute’s framers and ratifiers but because we live in a different era, a different culture.”
The decision sets the stage for a decision by the Supreme Court as the Seventh Circuit decision is at odds with the Eleventh Circuit which held just week earlier that Title VII does not bar discrimination based on sexual orientation, finding it would be wrong to stretch the meaning of “sex” in the statute to also include sexual orientation.