Wednesday, April 05, 2017

7th Circuit: 1964 Civil Rights Law Prohibits Anti-LGBT Discrimination

In the face of a growing Trump/Pence/GOP onslaught against LGBT Americans, the full Court of Appeals for the Seventh Circuit, a fairly conservative court, handed down a ruling that the 1964 Civil Rights Act bars anti-LGBT discrimination. The ruling is the direct opposite from that reached by a three judge panel of the 11th Circuit based in Atlanta.  The conflicting rulings set the stage for a possible case reaching the U.S. Supreme Court to resolve the split in the Circuits.  Arguably, an en banc ruling such as that of the 7th Circuit holds more precedent but is not binding outside of the states located within the 7th Circuit.  A piece in Star Tribune looks at the ruling that could rile the waters for anti-LGBT Republicans and their Christofascist puppeteers (more coverage is in the Indianapolis Star here).  Here are excerpts:
A federal appeals court ruled for the first time Tuesday that the 1964 Civil Rights Act protects LGBT employees from workplace discrimination, setting up a likely battle before the Supreme Court as gay rights advocates push to broaden the scope of the 53-year-old law.
The decision by the full 7th U.S. Circuit Court of Appeals in Chicago comes just three weeks after a three-judge panel in Atlanta ruled the opposite, saying employers aren't prohibited from discriminating against employees based on sexual orientation.
The case stems from a lawsuit by Indiana teacher Kimberly Hively alleging that the Ivy Tech Community College in South Bend didn't hire her full time because she is a lesbian.
Hively said she agreed to bring the case because she felt she was being "bullied."
She told The Associated Press in a telephone interview that the time has come "to stop punishing people for being gay, being lesbian, being transgender."
The Chicago ruling followed a so-called en banc hearing of all the judges in the appeals court, with eight agreeing that the civil rights law prohibits discrimination because of sexual orientation, and three dissenting. The vote is notable because the 7th Circuit is considered a relatively conservative appeals court. Eight out of the 11 judges were appointed by Republican presidents.
The issue could still land before the Supreme Court at some point. A GOP-majority House and Senate make it unlikely the Congress will amend the Civil Rights Act, which outlaws discrimination on the basis of race, color, religion, sex, or national origin and requires equal access to public places and employment.
The debate in the Hively case revolved around the meaning of the word 'sex' in Title VII of the Civil Rights Act. Some courts have concluded that Congress meant for the word to refer only to whether a worker was male or female. They said that it would be wrong to stretch the meaning of 'sex' in the statute to also include sexual orientation.
The lawyer representing the teacher, Gregory Nevins of the Lambda Legal advocacy group of LGBT rights, pointed to what he described as the absurdity of a 1980s Supreme Court finding that if workers are discriminated against because they don't behave around the office by norms of how men or women should behave, then that does violate the Civil Rights Law. But if a man or woman is discriminated against at work for being gay that was found not to violate the Civil Rights Act.
"You can't discriminate against a woman because she rides a Harley, had Bears tickets or has tattoos," he said. "But you can if she's lesbian."


Anonymous said...

I am doubtful that this interpretation of the statute will stand. The word used in the decision that will trouble men like Kennedy is that time and growth will lead jurists to an understanding of pertinent situations which permit them in their judicial decisions to "broaden" the original understanding of the language.

I think the conservatives will look at this and decide that they don't want the courts to arbitrarily broaden legislative acts. What is more, I think they will say the legislatures have had many opportunities to broaden the interpretations of such things as Title VII, and refused to do so with regard to LGBT people, and that there has not merely been an oversight in the proper application of the law.

I believe the equal protection route would be the proper argument in this case, but it doesn't seem to appeal to the SCOTUS. I hope I am wrong here. Time will tell.

EdA said...

Can't the 11th Circuit ruling be appealed en banc?

All the more reason NOT to keep from the Supreme Court someone who does not have the common sense to get out of the cold and who doesn't know why unknown people would spend over $10,000,000 to get an ostensibly impartial person onto the Supreme Court.