Appeals Court Seems Ready To Issue Sweeping Anti-Discrimination Ruling

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Kevin Daley Supreme Court correspondent
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The 7th U.S. Circuit Court of Appeals appeared ready to issue a sweeping new anti-discrimination ruling during Wednesday’s oral arguments in Chicago, setting the stage for a contentious appeal to the Supreme Court.

The case, Hively v. Ivy Tech Community College, asks the court to decide whether Title VII of the Civil Rights Act bans employment discrimination on the basis of sexual orientation. The law currently enjoins employers from discriminating against employees because of race, sex, national origin, or religion. Title VII, at least at first glance, is silent on the subject of sexual orientation. For this reason, Congress has considered amending Title VII to include sexual orientation, but has repeatedly declined to do so.

A pro-LGBT public interest law practice called Lambda Legal argues that Title VII already forbids discrimination on the basis of sexual orientation, and their theory received a friendly hearing before the full 7th Circuit.

The group represents Kimberly Hively, an adjunct professor at Ivy Tech who claims she was denied the opportunity to join the faculty full time because she is a lesbian. Hively’s lawyers argue this constitutes a Title VII violation (though remember, strictly speaking the law doesn’t mention sexual orientation).

Their argument runs as follows: Title VII prohibits discriminating against employees “because of sex.” It therefore follows, as the Supreme Court has already established, that sex-based stereotyping offends Title VII (in Price Waterhouse v. Hopkins the Court advises “Although the test for determining the validity of a gender-based classification is straightforward, it must be applied free of fixed notions concerning the roles and abilities of males and females”). Because discrimination against LGBT individuals is rooted in gender norms and stereotypes, they argue discriminating against an LGBT employee has always been actionable under Title VII. The Equal Employment Opportunity Commission has endorsed this reading of the text.

Chief Judge Diane Wood, a Bill Clinton employee, appeared to endorse that theory.

During oral arguments Wednesday, she asked “Isn’t that a built-in stereotype, that if you are a biological woman, you are attracted to men?” (RELATED: Supreme Court Appears Divided Over Bond Hearings For Illegal Immigrants)

Judge Ilana Rovner, a George H. W. Bush appointee, asked the obvious question this argument raises; how can one argue that sexual orientation claims are cognizable under Title VII when Congress has explicitly declined to amend the law to reflect that reading?

“Can we make anything of that at all?” Rovner wondered. “Are we placing too much power in the judiciary to amend the word sex to include sexual orientation when we know this was not the initial intent of Congress?”

Gregory Nevins, Hively’s lawyer, argued a faithful textualist approach requires the courts to read the law in this way, and that Congress could clarify anti-gay discrimination is not encompassed by Title VII if it were so inclined.

Counsel for Ivy Tech was peppered with questions from a skeptical bench, including a series of cutting inquiries from Judge Richard Posner, a Ronald Reagan appointee, who firmly rejected the contention that sexuality was an “immutable trait” of biological sex. “Why do you think there are lesbians?” He asked. Always one to hector the dead, Posner also managed to work in a dig at the late Justice Antonin Scalia.

Another Reagan appointee, Judge Frank Easterbrook, suggested the rationale of Loving v. Virginia, the Supreme Court case which struck down state miscegenation laws, was applicable in this instance.

A decision is not expected before the end of the year.

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