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U.S. Appeals Court Weighs Scope of Job Protections for Gay Employees

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U.S. Appeals Court Weighs Scope of Job Protections for Gay Employees

The federal Equal Employment Opportunity Commission on Wednesday argued in support of a gay woman who claims a South Bend, Indiana community college denied her a full-time job due to her sexual orientation.

The U.S. Court of Appeals for the Seventh Circuit, sitting en banc, will decide whether the ban on gender-based employment discrimination under Title VII of the Civil Rights Act of 1964 also extends to sexual orientation.

The judges at the hour-long hearing in Hively v. Ivy Tech Community College peppered both sides with numerous questions. But they saved a tougher line of questioning for the opposing counsel representing the Indiana community college.

Although the EEOC and at least one federal district court, the Western District of Pennsylvania, have ruled sexual orientation is included in Title VII’s provision of protection from discrimination “based on sex,” no federal appeals court has concurred. The Seventh Circuit case is widely seen as testing the scope of job protections for LGBT employees.

A three-judge panel in the Seventh Circuit in July upheld the Indiana judge who dismissed plaintiff Kimberly Hively’s suit. The appeals court said it was constrained by circuit precedent in applying Title VII to sexual orientation, as well as Congress’ inaction on adopting proposed amendments that would explicitly add sexual orientation to the Civil Rights Act. Hively filed the lawsuit in August 2014.

The en banc Seventh Circuit, comprising 11 judges, accepted Hively’s rehearing petition, which came with amicus support from the EEOC. The full court can uphold the panel’s original outcome, or rule in favor of Hively and the EEOC.

EEOC lawyer Gail Coleman argued Wednesday as an amicus, supporting Hively’s lawyer, Gregory Nevins, counsel and employment fairness program director in the Southern Regional Office of LGBT advocacy group, Lambda Legal.

Coleman urged the judges to conclude that Title VII covers sexual orientation discrimination by its plain language. “This court is not being asked to add a new protected class to the statute, and there is no need to alter the original understanding of sex as meaning ‘because of being female’ or ‘because of being male,’” she said.

Coleman pointed to precedent from the 1989 U.S. Supreme Court case Price Waterhouse v. Hopkins and the commission’s 2015 ruling that sexual orientation is covered by Title VII, Baldwin v. Foxx, in arguing that discrimination against an individual based on their failure to conform to gender norms is a violation of Title VII.

Since the “quintessential failure to conform to a gender norm,” Coleman said, “is going against the expectation that men will be attracted to women and women will be attracted to men,” sexual orientation must be included in Title VII.

The en banc judges directed most of their questions for John Maley of Barnes & Thornburg’s Indianapolis office, who argued for Ivy Tech.

Maley argued the language of Title VII does not mention sexual orientation, and he pointed to Seventh Circuit precedent that denied sexual orientation as a basis for a Title VII claim.

Judges told Maley that the en banc court can reconsider past decisions, and they pressed him on other issues, including whether there could be negative practical effects on a business if it promulgated rules forbidding sexual orientation discrimination.

The Seventh Circuit posted an audio recording of the argument on its website after the hearing, in Chicago, concluded.

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