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Edging to National Gay Rights Ruling

A recent federal appeals court ruling that job discrimination against Gays violates federal civil rights law lays the legal groundwork for a review of the issue by the Supreme Court.

The Seventh Circuit U.S. Court of Appeals handed down the ruling on April 4, after two other federal appeals courts ruled that civil rights law prohibitions against sex discrimination refer to gender bias against females and males, and not to sexual orientation.

Because of this conflict between the Seventh Circuit and these other appeals courts, a showdown before the Supreme Court over this issue now appears to be inevitable.

What makes this of more interest to employers is that the case under review focuses directly on a charge of job discrimination.

Kimberly Hively had worked as a part-time adjunct professor for Ivy Tech Community College in South Bend, IN, for 14 years until her employment contract was not renewed in 2014.

She said that during her time at the college she applied for six full-time positions but claims she was never offered an interview although she had all the necessary qualifications and had never received a negative job evaluation.

A trial court dismissed her case and she appealed to the Seventh Circuit Court of Appeals, which oversees federal courts in Illinois, Indiana and Wisconsin. As is usually the case, her initial appeal was heard by a three-judge panel instead of the court’s current full complement of 11 judges.

The three-judge panel rejected her claims, pointing out that no previous court decision nor Congress had seen fit to include sexual orientation as part of the applicable law.

In fact, over the years legislation has been introduced in Congress for the express purpose of granting protected legal status to Gays but has yet to pass.

After the Seventh Circuit three-judge panel issued its decision last July, Hively’s lawyers sought review by all of the court’s 11 judges.

Those judges then voted eight to three to overturn the three-judge panel’s earlier decision.

The eight-judge majority stated “discrimination on the basis of sexual orientation is a form of discrimination” and that it “would require considerable calisthenics” to remove the “sex” from “sexual orientation” when applying the law.

In addition, the majority noted that efforts to do so had led to confusing and contradictory results, especially in view of the Supreme Court decision legalizing Gay marriage.

In a concurring opinion, Judge Richard Posner admitted that the law’s definition of “sex” discrimination did not mean discrimination based on sexual orientation. But, he said, the statute needs an “interpretation that will update it to the present.”

What It Means for Employers

The decision at present applies only to employers within the Seventh Circuit’s three-state jurisdiction.

Laws in Illinois and Wisconsin already ban sexual orientation discrimination. For employers in Indiana, the law firm of Fisher Phillips warns them to take proactive steps to treat sexual orientation the same as any other protected class.

The lawyers say this includes reviewing your written policies, handbooks, training sessions, workplace investigations, hiring methods, discipline and discharge procedures, and all other aspects of your human resources activities.

As for employers in the rest of the country, some cities and states already have statutes on the books banning sexual orientation bias in the hiring and treatment of employees.

Panels of the Second Circuit and the Eleventh Circuit Courts of Appeal recently declined to extend federal law to include sexual orientation discrimination. Those decisions are being appealed to the panels’ full courts. Thus it’s possible that the Seventh Circuit ruling will be followed by similar circuit court decisions.

Although the Supreme Court or Congress could step in and reverse this trend, employers should remember that President Trump affirmed Obama’s order requiring federal contractors to protect Gay employees from discrimination or harassment, estimated to cover about 24,000 companies employing 28 million workers.

The Seventh Circuit decision is likely to be very influential in other parts of the country, even though courts outside the Seventh Circuit are not obligated to follow it, according to labor law expert Robin Shea, partner in the law firm of Constangy, Brooks, Smith & Prophete.

Even where state laws and local ordinances don’t ban such discrimination, she says employers should prohibit such conduct as a matter of company policy. This also means including it in companies’ regular EEO and harassment training, She adds.

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