Federal Appeals Court Rejects Protections For LGB People
July 31, 2016 12:39 PM   Subscribe

"Sexual orientation discrimination protections for lesbian, gay, and bisexual people can only come from the Supreme Court or Congress, the federal appeals court in Chicago rules." [sl-buzzfeed article]

FTA: "WASHINGTON — A federal appeals court on Thursday rejected a woman’s claim that existing civil rights law protects against sexual orientation discrimination — ruling that only the Supreme Court or Congress can make that the law.

“Kimberly Hively has failed to state a claim under Title VII [of the Civil Rights Act of 1964 for sex discrimination,” the 7th Circuit Court of Appeals held in its decision in Hively’s appeals. “[H]er claim is solely for sexual orientation discrimination which is beyond the scope of the statute.”

In ruling against Hively’s claim — that sexual orientation discrimination should be barred under Title VII as a type of sex discrimination — the court, primarily, pointed to a series of rulings from the appeals court beginning in 1984 and continuing through 2000 in which the court found that anti-LGBT discrimination was not covered by Title VII.

A clearly conflicted Judge Ilana Rovner, joined by Judge William Bauer, went on for more than 40 pages, however, detailing what Rovner described as “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.”"
posted by marienbad (19 comments total) 11 users marked this as a favorite
 
I'm confused about the impact of this. Does this mean that no LGB person in the country has employment protections (aside from states that explicitly prohibit discrimination based on sexual orientation)? Is that immediately effective, or what?
posted by AFABulous at 1:36 PM on July 31, 2016


It was a good attempt, I think, to try to see if sexual orientation would, today, fall under Title VII when in years past it was ruled it did not. Stare Decisis aside, community and social standards change and it was entirely possible that the ruling could have gone the other way.

I've been a bit astounded that they have managed to get trans protections to slide in under Title IX, to be honest.

Does this mean that no LGB person in the country has employment protections (aside from states that explicitly prohibit discrimination based on sexual orientation)? Is that immediately effective, or what?

No LGB persons in the country have had employment (or housing) protection aside from states which have passed explicit laws. This has been true all along. It's immediately effective insofar as it has always been the case. There are a handful of states that have passed employment and housing protections for LGBT persons, but they are far from the majority.

As of now, ENDA remains stuck in Congress and has not made it to any President's desk for signing.
posted by hippybear at 1:50 PM on July 31, 2016 [12 favorites]


(And, it should be noted, ENDA does not address discrimination in housing. It only addresses employment issues.)
posted by hippybear at 1:51 PM on July 31, 2016 [2 favorites]


No LGB persons in the country have had employment (or housing) protection aside from states which have passed explicit laws. This has been true all along. It's immediately effective insofar as it has always been the case. There are a handful of states that have passed employment and housing protections for LGBT persons, but they are far from the majority.

Okay, but this doesn't do anything in the states that have passed explicit laws, correct? I'm asking as somebody who lives in one of them.
posted by dinty_moore at 2:04 PM on July 31, 2016 [1 favorite]


This is one reason why we need explicit LGBTQ protections in statute. I'm not convinced that slipping into the shadow of the Civil Rights Acts is all that feasible.
posted by CBrachyrhynchos at 2:10 PM on July 31, 2016 [1 favorite]


Okay, but this doesn't do anything in the states that have passed explicit laws, correct?

No, it does not affect states that have passed explicit LGBT protection laws. There is no Federal law which protects LGBT people for housing or employment issues, but there is also no Federal law which specifically allows or mandates LGBT discrimination. So the state laws hold supreme in the states which have passed them.

(Contrast the states which have legalized marijuana for various purposes. There IS an explicit Federal law which outlaws any and all marijuana use, so these states are in a bit of legal limbo, wherein the Feds are looking the other way (more or less) when it comes to marijuana sales and consumption by people in those states, but they could move in and use Federal law to supersede the state law any time they decide to do so.)
posted by hippybear at 2:17 PM on July 31, 2016 [1 favorite]


Is the first quoted sentence after "FTA" some sort of odd, inaccurate press restatement? I can't believe that a judge would say that the supreme court "makes" laws.
posted by 445supermag at 2:31 PM on July 31, 2016


Is the first quoted sentence after "FTA" some sort of odd, inaccurate press restatement?

You're welcome to read the actual decision document. It's quite an education in the legal application of sexual orientation vs. non-conforming gender expression as it has been applied under Title VII in courts across the decades. I don't see the judge actually stating that the Courts on any level have the power to make laws, but only interpret them in the context of apparent lawmakers' intent and stare decisis. But I only skimmed the lengthy decision. Perhaps a closer reading will yield different results.
posted by hippybear at 2:44 PM on July 31, 2016


Just a heads-up, that decision document has a lot of unpleasant and jarring uses of the word "transsexual" and "transvestite" and "transsexualism" as it quotes a particular 1984 case way more than it really needs to be quoted. (Ulane v. Eastern Airlines, Inc.)
posted by Rainbo Vagrant at 3:06 PM on July 31, 2016 [2 favorites]


Why is it that the word sex cannot be read as "other people's non-right to any control over my sexuality" the same way, apparently, the word religion covers a vast array of behaviors all very protected that many other people would like to "do something about" ?

Not really about the gonads here folks we are talking a reason to hate based on a situation far less of a "lifestyle choice" [none actually] than switching to Baptist from Quaker, and back via Hinduism, which you can do repeatedly all day long and be very protected.
posted by Freedomboy at 3:32 PM on July 31, 2016 [4 favorites]


It's worth highlighting the fact (mentioned in the article) that this decision puts the Seventh Circuit into direct conflict with the EEOC. The agency is unlikely, under a Democratic administration at least, to change its policy nationwide, so I assume we'll see this decision looked at in other circuits relatively soon.
posted by praemunire at 3:45 PM on July 31, 2016 [1 favorite]


Buzzfeed < case cites. :-P Always read 'em for yourself:

Hively v Ivy Tech, No. 15-1720 (7th Cir. July 28, 2016)
Hively v Ivy Tech, No. 3:14-cv-1791 (N.D. In. March 3, 2015)
posted by saizai at 3:49 PM on July 31, 2016


The Adjunct Faculty Award for Excellence in Instruction recipients (2012) are:

I'd be interested in knowing what reasons, if any, they gave when she was passed over for the jobs. And who got the slots instead. Also breakdown of full time faculty at the place. Because absent a severe fall off in quality since 2012, teaching ability doesn't seem to be at issue.
posted by IndigoJones at 3:59 PM on July 31, 2016


I've been a bit astounded that they have managed to get trans protections to slide in under Title IX, to be honest...

As of now, ENDA remains stuck in Congress and has not made it to any President's desk for signing.


Wouldn't an LGB version of ENDA have a better chance of passing now, though, assuming that T rights are now covered under Title IX? Or am I missing something?
posted by Umami Dearest at 10:26 PM on July 31, 2016


I didn't know what stare decisis meant in hippybear's informative comments - or rather I sort of knew it by another name. Anyway;
Stare decisis is the doctrine of precedent. Courts cite to stare decisis when an issue has been previously brought to the court and a ruling already issued. Generally, courts will adhere to the previous ruling, though this is not universally true.
More at cite.
posted by vapidave at 3:16 AM on August 1, 2016


The Buzzfeed quote that frames this post is misleading. As noted above, state LGBT protection laws still apply. What this case says is Title VII federal protection against sex discrimination does not apply to LGBT people. Which is too bad, but not entirely a surprise and does not undo any of the existing state laws. We still lack national level protection.
posted by Nelson at 3:35 AM on August 1, 2016 [1 favorite]


This makes it a circuit split, or at least almost a circuit split, at the very least between the 9th (Chi-town) and the 4th, which has basically sub silentio held that it's "sex discrimination" to discriminate against someone at work for failing to conform to gender norms, such as, "Men don't have sex with men." Circuit splits are fruitful soil for Supreme Court cert grants.

Moreover, the Obama EEOC, charged with enforcing Title VII, has taken the position that "sex" outright includes orientation.

The Supreme Court will be watching carefully.
posted by radicalawyer at 11:49 AM on August 1, 2016 [1 favorite]


I'd be interested in knowing what reasons, if any, they gave when she was passed over for the jobs.

Don't pretty much all employers avoid giving reasons why someone is not offered a job/promotion? IANAL, but it seems to me that there's no upside for employers giving out that kind of information, and the liability exposure is potentially huge.
posted by shponglespore at 4:35 PM on August 1, 2016


The EEOC provides a pretty good summary of the current case law. It does seem like an issue that will have to be resolved by the Supremes.
posted by Lame_username at 7:42 AM on August 2, 2016


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