Monday, August 1, 2016

Employers, ignore 7th Circuit’s rejection of Title VII LGBT protections

In Hivley v. Ivy Tech Community College (7th Cir. 7/28/16) [pdf], the 7th Circuit ruled that Title VII does not prohibit sexual-orientation discrimination. In doing so, this appellate court has taken a position directly contrary to that of the EEOC, which has concluded that Title VII expressly prohibits LGBT discrimination under the rubric of gender non-conformity-as-sex-discrimination.

The entire 42-page opinion is worth your time to read. It is a thorough analysis and summary of the state of the law (pro and con) of LGBT employment discrimination. Do not, however, dismiss this Court’s dismissal of Hivley’s claim as anti-LGBT. Instead of anti-LGBT rights, consider the 7th Circuit as pro-precedent. Indeed, even though the plaintiff loses her case, the Court has a lot to say on whether the result, which the Court believes Title VII mandates, is morally justified:
The cases as they stand do, however, create a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act. For although federal law now guarantees anyone the right to marry another person of the same gender, Title VII, to the extent it does not reach sexual orientation discrimination, also allows employers to fire that employee for doing so. From an employee’s perspective, the right to marriage might not feel like a real right if she can be fired for exercising it. Many citizens would be surprised to learn that under federal law any private employer can summon an employee into his office and state, “You are a hard-working employee and have added much value to my company, but I am firing you because you are gay.” And the employee would have no recourse whatsoever—unless she happens to live in a state or locality with an anti-discrimination statute that includes sexual orientation. …
In one sense, the paradox is not our concern. Our task is to interpret Title VII as drafted by Congress…. Title VII prohibits discrimination only on the basis of gender. … As things stand now, however, our understanding of Title VII leaves us with a somewhat odd body of case law that protects a lesbian who faces discrimination because she fails to meet some superficial gender norms—wearing pants instead of dresses, having short hair, not wearing make up—but not a lesbian who meets cosmetic gender norms, but violates the most essential of gender stereotypes by marrying another woman. We are left with a body of law that values the wearing of pants and earrings over marriage. … 
Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it; many of the federal courts to consider the matter have stated that they do not condone it; and this court undoubtedly does not condone it. But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent….
Readers, the times are a changin’. When an openly gay man addresses the Republican National Convention in a prime-time speaking slot on the same night the nominee accepts his nomination, you know that our national attitude towards LGBT rights is moving towards full inclusion.

Employers, here is my challenge to you. On this issue, ignore Title VII, ignore the EEOC, and ignore the courts, and just do what is right. It is incomprehensible that in 2016 an employer can legally fire someone because of who he or she loves, dates, or marries. Do right by all of your employees. Enact policies prohibiting LGBT discrimination in your workplace. Send the message that you are an employer of inclusion, not exclusion. 

And, in the meantime, Congress, please get off your collective fanny and pass ENDA already. It would make this issue so much simpler.

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