LGBT Employees Protected By Federal Civil Rights Act, Appeals Court Rules

"It would require considerable calisthenics to remove the "sex" from 'sexual orientation.' The effort to do so has led to confusing and contradictory results", Chief Judge Diane Wood concluded in the majority opinion.

Kimberly Hively, a lesbian woman, began teaching as a part-time adjunct professor at Ivy Tech Community College in IN in 2000.

Title VII of the Civil Rights Act makes it unlawful for employers to discriminate on the basis of "race, color, religion, sex, or national origin". The 2nd Circuit panel said its binding precedent precludes a holding that Title VII protects gays and lesbians - but two members of the panel, including Chief Judge Robert Katzmann, said in a concurrence that it's time for the entire 2nd Circuit to reconsider its precedent. The judges noted that we live in "a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act", but indicated they were all but powerless to rule otherwise absent a Supreme Court directive or a congressional amendment to Title VII.

"It is therefore neither here nor there", she wrote, that Congress "may not have realized or understood the full scope of the words it chose" when it passed the Civil Rights Act in 1964. With a laugh, he pointed out that Justice Scalia wrote the Supreme Court opinion in Oncale, the case concluding that, as a matter of statutory interpretation, Title VII protects employees from same-sex harassment.

"In many cities and states across the country, lesbian and gay workers are being fired because of who they love", Greg Nevins, employment fairness program director for the LGBTQ advocacy group Lambda Legal, said in a statement. "This decision is gamechanger for lesbian and gay employees facing discrimination in the workplace and sends a clear message to employers: it is against the law to discriminate on the basis of sexual orientation". But Tuesday's ruling by the full appeals court found that a series of Supreme Court and appeals court rulings have applied Title VII in cases that go beyond basic gender discrimination.

Hively filed a federal lawsuit alleging sexual orientation discrimination under Title VII, and in 2015, the trial court dismissed her case. "All of those cases ruled in the last 15 or 30 years, that's a moot point".

"Mostly in housing and public accommodation, which is retail and any time you're not at home or work is public accommodation".




However, over the years, plaintiffs have sought a much broader interpretation of what should be covered as sex discrimination. That's what the civil rights laws were created to eradicate.

In her March 2016 ruling granting Omnicom summary judgment dismissing the case, U.S. District Court Judge Kathryn Failla in NY cited the 2nd Circuit's 2000 ruling in Simonton v. Runyon in which the court "unequivocally held that 'Title VII does not proscribe discrimination because of sexual orientation'". "Sexual orientation discrimination is specifically barred by our policies". Similarly, if someone discriminates against a trans woman, that's largely based on the expectation that a person designated male at birth should identify as a man - again, a belief built on the idea of what a person of a certain sex assigned at birth should be like. "Our panel described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all".

LGBTQ advocates, citing legal precedent, say that what the original laws' authors believe or intended is irrelevant. In this case, we have been asked to take a fresh look at our position in light of developments at the Supreme Court extending over two decades.

ESSEKS: Yes. In our view, it's always been true that lesbian, gay, bisexual and transgender people are protected under the federal civil rights law.

However, Evandro C. Gigante, a partner with Proskauer Rose L.L.P.in NY, said: "I don't think it was a punt". When an employer discriminates against a worker for switching sexes, he is literally engaging in discrimination "because of sex".

"But of course once that happens" there will be a circuit split, which "makes the whole question ripe for review by the Supreme Court", said Mr. Gigante, who would not speculate as to how the high court is likely to rule on the issue.

After all, it observed, the Supreme Court has danced pretty close to this issue without actually taking it on.

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