Thursday, December 1, 2016

Will the 7th Circuit ban LGBT employment discrimination?

Those of you who have been reading this blog for any length of time should know that I strongly believe that it is a national embarrassment that LGBT employment discrimination remains legal. Sure, the EEOC believes that Title VII’s prohibition against sex discrimination covers LGBT discrimination. But, despite what it may think, the EEOC does not make law, it merely enforces laws made by others. And, yes, some federal courts are starting to come around to believing that Title VII covers LGBT discrimination. Yet, until either Congress amends Title VII to expressly cover LGBT discrimination, or all federal courts conclude that Title VII already covers it, employers are compliance limbo.

Yesterday, however, we received a bright signal that a key piece of judicial puzzle may soon fall into place. Earlier this year, in Hivley v. Ivy Tech Community College, a three-judge panel of the conservative 7th Circuit Court of Appeals held that Title VII does not prohibit sexual-orientation discrimination. Yesterday, a full panel of that same court heard re-hearing in that case, and, according to Employment Law 360, the tenor of the hearing suggests that the 7th Circuit is prepared to reverse its prior decision and hold that Title VII expressly bans LGBT employment discrimination.
Attorneys arguing Title VII of the act does not protect those who identify as gay or lesbian faced harsh questions from the bulk of the eleven Seventh Circuit judges on the panel, many of whom seemed to see a serious conflict between the U.S. Supreme Court’s ruling that discrimination based on failure to conform to gender norms is covered by Title VII and current interpretations of the act, which allow employers to discriminate against their employees based on their sexual orientation.
We will have to wait for the decision to determine if these tea leaves are pointing in the right direction. Whether they do, or not, however, I believe is ultimately irrelevant to how you should run your business. I’ll repeat what I said a earlier this year when the 7th Circuit announced its original decision:
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.
Update: A recording of the Hivley oral argument is available here. Thank you Jesse Dill for the info.