POLITICS
04/05/2017 05:53 pm ET

Losing Employer Won't Ask Supreme Court To Overturn Landmark Gay Rights Ruling

Gay and lesbian workers in three Midwest states now have greater federal protection.

The Indiana community college on the losing end of a landmark decision protecting gay and lesbian employees will not appeal that ruling to the Supreme Court. The battle over LGBTQ rights in the workplace stays in the deeply divided lower courts ― for now.

The full U.S. Court of Appeals for the 7th Circuit ruled Tuesday that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, sex and other protected categories, also applies to sexual orientation. It was the first federal appellate court to reach that conclusion, and it did so despite Congress’ failure to amend the statute to specifically cover gay workers.

The employer at the center of the case, Ivy Tech Community College, said Wednesday that it won’t appeal the ruling. The statewide community college system will continue to defend itself in the lower courts, according to spokesman Jeffery Fanter.

In his statement, Fanter emphasized that while Ivy Tech may disagree with the legal decision, it does not support discrimination. “Sexual orientation discrimination is specifically barred by our policies,” he said.

“The College denies that it discriminated against the plaintiff on the basis of her sex or sexual orientation and will defend the plaintiff’s claims on the merits in the trial court,” Fanter explained.

The 7th Circuit ruling sets the law in Indiana, Illinois and Wisconsin.

Kimberly Hively, a part-time instructor at Ivy Tech who is openly lesbian, filed a complaint with the federal Equal Employment Opportunity Commission in 2013 after she had been rejected for several full-time positions over the previous five years. She claimed that Ivy Tech was rebuffing her because of her sexual orientation.

A trial court dismissed Hively’s lawsuit on the grounds that federal employment law doesn’t explicitly include protections for gay workers. A panel of the 7th Circuit affirmed that decision, noting that it was constrained by earlier precedents. But the full appeals court chose to rehear the case in November. By a solid 8-3 majority, the 7th Circuit concluded on Tuesday that discrimination based on sexual orientation is indeed a form of sex discrimination prohibited under Title VII.

“The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line,” wrote Chief Judge Diane Wood in a ruling that is being hailed for its shrewdness and adherence to the text of the law.

The eight judges in the majority had been nominated to the court by both Republican and Democratic presidents.

The acting head of the EEOC, Victoria Lipnic, praised the ruling in a statement.

“In an exacting opinion, the full Seventh Circuit has come to the same conclusion that the EEOC has ― that discrimination on the basis of sexual orientation is, by definition, sex discrimination,” Lipnic said. “I commend the patient and diligent lawyering that brought the Court of Appeals to this conclusion, including the efforts of this agency.”

But the issue still divides the federal appeals courts. Just last week, the 2nd Circuit ― which covers New York, Connecticut and Vermont ― largely sidestepped the matter in the case of a gay worker who alleged harassment on the job. The more conservative 11th Circuit — which encompasses Alabama, Georgia and Florida — dismissed a claim similar to Hively’s brought by a female security officer.

Lambda Legal, the civil rights organization behind the 7th and 11th Circuit cases, expects the latest decision to change the landscape for those still-developing cases and for later Supreme Court review. 

“We may have to win circuit by circuit, and we’re ready to do just that,” said Gregory Nevins, the Lambda Legal attorney who argued and won the Hively appeal.

Hively herself weighed in on Lambda Legal’s website. “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,” she said. “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.”

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