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Civil rights law has long protected people against discrimination based on race, religion or gender, but now lawsuits are testing whether those protections can be extended to cover sexual orientation.
And federal courts in several jurisdictions are struggling with the issue of whether Title VII of the Civil Rights Act of 1964 protects gay and lesbian employees from workplace bias.
Recent court rulings indicate that at least some members of the judiciary would like to see Title VII protections, which already provides protection for those who do not conform to gender stereotypes, extended to sexual orientation.
But they have been stymied by the literal wording of Title VII, which was enacted in 1964 and does not specifically cite gays, the absence of a U.S. Supreme Court ruling on the issue and Congress’ failure to successfully address it through legislation.
Meanwhile, many state and local laws already extend civil rights protection to gay people, and many employers have been proactive on this issue.
In a July 28 ruling in Kimberly Hively v. Ivy Tech Community College, South Bend, a three-judge panel of the 7th U.S. Circuit Court of Appeals in Chicago said it was obligated to affirm a lower court ruling that Ms. Hively, a lesbian college instructor, could not successfully make a claim for sexual orientation discrimination under Title VII because it was beyond the statute’s scope.
But the ruling indicated it was time for either Congress or the U.S. Supreme Court to address this issue.
Then, in what experts say was a rare move, the 7th Circuit in October agreed to vacate that ruling and rehear the case en banc.
“This is the first time that a court has agreed to take a second look at the issue,” and it “looks as though they’re going to take a hard look at it, one way or another,” said Johanna G. Zelman, a partner with FordHarrison L.L.P. in Hartford, Connecticut.
However, “It’s unlikely they would have taken it at all” if they were to affirm sexual orientation is not covered by Title VII, said Paul E. Starkman, a member of law firm Clark Hill P.L.C. in Chicago.
In another case in June, 128 congressional Democrats filed a rare amicus brief in a case now being considered by the 2nd U.S. Circuit Court of Appeals in New York, Matthew Christiansen v. Omnicom Group Inc. et al., in which a gay employee charged his employer with discrimination under Title VII. The brief urges the court to rule the law prohibits sexual orientation discrimination.
Meanwhile, as the 7th Circuit notes in its original ruling, in 2015 the U.S. Equal Employment Opportunity Commission held in Baldwin v. Foxx that federal employees were protected under Title VII from sexual orientation discrimination.
Experts also point out that while the Supreme Court held in 2015 that samesex marriage is legal, the law still does not protect discrimination against sexual orientation.
“The law really can’t exist long” under these circumstances, said Mark I. Schickman, a partner with Freeland Cooper & Foreman L.L.P. in San Francisco.
Experts add that as long ago as its 1989 ruling in Price Waterhouse v. Hopkins, the Supreme Court ruled gender stereotyping, which are fixed ideas about men’s and women’s characteristics and how they should behave, is sex discrimination.
But to date the court has failed to take what many consider a small, further step and rule sexual orientation discrimination is unlawful as well.
“It doesn’t make any sense the way things are right now,” said Richard B. Cohen, a partner with FisherBroyles L.L.P. in New York.
Many experts say they believe that ultimately, through either judicial ruling or federal legislation, sexual orientation discrimination will become illegal.
“I do see the protection being extended, if not in the near future, then in the midterm,” said Martha J. Zackin, a partner with Bello/Welsh L.L.P. in Boston.
Meanwhile, “My advice to business has always been, ‘Don’t do it,’” said Beau Howard, a partner with Freed Howard L.L.C. in Atlanta, on discriminating based on sexual orientation.
“One, it makes you look awful; and two, you’re going to run afoul of some law even if Title VII doesn’t apply.”
A federal court has held that sexual orientation discrimination is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964, in what the U.S. Equal Employment Opportunity Commission describes as an historic ruling.