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Appeals court rejects LGBT employment discrimination

The Human Rights Campaign (HRC) joined North Carolina business leaders in Charlotte during a press conference to show support for the Employment Non-Discrimination Act, July 9, 2013.

Democrats in recent years have pushed repeatedly for changes to existing laws against workplace discrimination, because there’s an obvious gap. While many states prohibit discrimination against LGBT workers, federal law includes no such protections.

Employers can’t discriminate on the basis of race, sex, age, religion, national origin, disability, or genetic information, but federal civil rights law make no specific references to sexual orientation or sexual identity. Democrats have championed measures like the Employment Non-Discrimination Act (ENDA) to remedy the problem.

But in a surprising twist, the 7th Circuit Court of Appeals concluded yesterday that the law may not necessarily need improving – because existing law should already be interpreted to extend anti-discrimination protections to LGBT Americans.

A federal appeals court in Chicago ruled Tuesday that long-standing federal civil rights laws prohibit discrimination on the job against lesbian, gay, bisexual, and transgender employees.

It was the first ruling of its kind from a federal appeals court.

The decision, from the Seventh Circuit Court of Appeals in Chicago, said “discrimination on the basis of sexual orientation is a form of sex discrimination.”

The full ruling in Hively vs. Ivy Tech Community College is online here. The case involves a part-time professor who argued that she wasn’t considered for a job she was qualified for because she’s a lesbian.

In the 8-3 en banc ruling – it was heard by every member of the 7th Circuit appellate bench – the court said “it would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’” (An Associated Press report added, “Eight out of the 11 judges who reheard the case, including Posner, were appointed by Republican presidents.”)

While this was an unexpected breakthrough for proponents of expanded civil-rights protections, it’s worth noting that yesterday’s decision is at odds with a recent ruling from the 11th Circuit. The NBC News report added, “Last month, by a 2-1 vote, a federal appeals panel in Atlanta reached the opposite conclusion in the case of Jameka Evans, who claimed she was targeted for termination because she didn’t ‘carry herself in a traditional woman manner’ in her job as a hospital security officer.”

As a rule, when the appellate courts reach competing conclusions on similar questions, it all but guarantees a Supreme Court review – making the fight over Neil Gorsuch’s nomination that much more important.