The Seventh Circuit Court of Appeals hands down a seminal ruling holding that Title VII of the Civil Rights Act protects LGBT employees from workplace discrimination.

I have long bemoaned the fact that federal law does not protect LGBT employees from discrimination. Title VII of the Civil Rights Act outlaws discrimination based on “sex” but courts have always interpreted that to refer to one’s gender; not one’s sexual orientation.  In response, over the years, some states, including (thankfully) Illinois and Wisconsin, passed state laws outlawing LGBT discrimination.  However, there are many states that do not have such laws.  One of these states is Indiana.  In states like Indiana it was, prior to last week, perfectly legal to fire someone because of their sexual preference or gender identity.

Some members of Congress have attempted, for years, to fix this problem by trying to pass a law called ENDA.  I have written about/whined about Congress’ inability to pass this law on many occasions.  After years of seeing ENDA fail to even get off the ground, in the past few years the EEOC has gotten creative and started arguing that while Title VII does not specifically outlaw LGBT discrimination, the statute, nevertheless, applies to sexual orientation cases because of the use of the word “sex” in the statute.  All of the courts throughout the country who have considered this issue have disagreed with the EEOC.   Further complicating the matter, the U.S. Supreme Court has yet to weigh in.

In the past the Court has, however, held that Title VII prohibits gender stereotyping (i.e. discriminating against someone because they do not behave in the way one believes a person of their gender should behave: think not “manly” enough or “too Tom boyish.”).   This decision left some room for creative attorneys to try to contort sexual orientation cases into gender stereotyping cases but that didn’t always work because not all gay people present the opposite or deviate from gender stereotypes of masculine and feminine.

Enter the Hively case.  The Plaintiff in that case, Ms. Hively, is a lesbian who worked for the Defendant for 14 years.  In her lawsuit she contends that her problems at work started after someone saw her kiss her partner goodbye in the parking lot and that it was her employer’s discomfort with her sexual orientation that lead to her ultimate termination.

In considering these facts, not too long ago a panel of three Seventh Circuit judges begrudgingly held that Title VII does not prohibit sexual orientation discrimination.   Following that decision, the Court decided to hear the case en banc which means that all of the judges reheard the case rather than just the typical panel of three.  This is a fairly rare occurrence and was exciting to those of us who get excited about these things.  If you would like to listen to the oral arguments in that case you can go here.

Much to our surprise, last week the Court handed down an 8-3 decision finding that Title VII does prohibit LGBT discrimination!   In reaching this decision Justice Diane Wood wrote that the Court’s job was not to rewrite Title VII (indeed, courts do not have the power to change statutes) but was, instead, to “decide…what it means to discriminate on the basis of sex, and in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex.”

Judge Wood and those judges who agreed with her answered yes for a few different reasons.

Those who argue against Title VII prohibiting sexual orientation discrimination point to the original intent of the gender part of the statute which was, back in 1964, to guarantee women equal treatment at work. Sexual orientation discrimination was simply not on the radar then.  But Judge Wood batted aside that argument and made a great point:  assuming everything in the Hively case was the same except that the Plaintiff was a man instead of a woman would the employer have made the same decision?  And here Judge Wood found the answer to be no.  Ms. Hively was in a relationship with a woman and she offered at the trial court level a lot of evidence that her relationship made her superiors uncomfortable.  Ms. Hively had argued that had she, instead, been a man in a relationship with a woman that her employer would not have been bothered by it.  As Judge Wood held this is classic gender discrimination.

The Court also examined the issue through the gender non-conformity lens and held that employees who are gay are, perhaps, committing the biggest gender norm violation there is by being romantically involved with someone of the same sex.

Finally, (and this is my favorite point of hers) Judge Wood looked to the 1967 case of Loving v. Virginia which made interracial marriage prohibitions illegal. [Side note:  isn’t it abhorrent to think there were ever such laws?].  In Loving, the U.S. Supreme Court held that discriminating against someone because that person associates himself (in this case by marriage) with someone of another race is race discrimination.  Extending that common sense holding to the case at hand, Judge Wood held that discriminating against someone who associates herself with someone of the same gender is, of course, gender discrimination.  When I read that comparison I thought, “duh!” But I had never before thought of the issue like that.

So what does this mean for employees in Illinois, Indiana and Wisconsin which are the three states that comprise the 7th Circuit? For now, it is illegal for employers to discriminate against LGBT employees.   For those of us in Illinois and Wisconsin that won’t be a big change because LGBT employees have enjoyed state-mandated legal protections here for some time.  Indiana LGBT employees will, however, enjoy protection from discrimination for the first time in the state’s history.  And that is something to celebrate.  Even better, Ivy Tech, Ms. Hively’s former employer,  says that it does not plan to appeal the issue to the Supreme Court so the decision will stand–at least until the Supreme Court decided to consider the issue in another case.

Finally, Kudos to Lambda Legal for fighting the long hard battle on behalf of Ms. Hively!