A rare full-court session of a U.S. appeals court in Chicago heard arguments Wednesday on whether protections under a 1964 Civil Rights Act should be expanded to cover workplace discrimination against LGBT employees, as hopes dim among some gay rights activists that the question will be resolved in their favor following Republican election victories.
Several of the 11 judges at the 7th U.S. Circuit Court of Appeals signaled they are ready to enter what would be a historic ruling broadening the scope the 52-year-old landmark law, with the court directing the toughest questions during the hourlong hearing at a lawyer who argued only Congress could extend the protections.
Judge Richard Posner repeatedly interrupted the lawyer representing an Indiana community college that was sued by a lesbian for alleged discrimination and at one point asked: "Who will be hurt if gays and lesbians have a little more job protection?" When Barnes & Thornburg LLP attorney John Maley said he couldn't think of anyone who would be harmed, Posner shot back, "So, what's the big deal?"
Even if the 7th Circuit becomes the first U.S. appellate court to rule that the law covers sex-orientation bias, legal experts say the issue is likely to land before the Supreme Court. Chances of a majority of justices agreeing that workplace protections should include LGBT workers could be slimmer if President-elect Donald Trump fills a high court vacancy with a social conservative.
A GOP-majority House and Senate also makes it unlikely the next Congress will amend the statute, said Chicago-based labor lawyer Barry Hartstein.
"You can't count on Congress or the courts," said Hartstein, who wants the act to cover LGBT workers.
President Barack Obama's administration has taken the position that the law already prohibits discrimination of LGBT workers. It has criticized courts for a reluctance to reach the same conclusion.
The 7th Circuit decided in October to rehear the case of teacher Kimberly Hively, who claimed Ivy Tech Community College in South Bend didn't hire her full time because she is a lesbian. The full court vacated the July finding by three of its own judges that the civil rights law doesn't cover sexual-orientation bias. A new ruling is expected within several weeks.
Wednesday's hearing focused on the meaning of the word 'sex' in Title VII of the Civil Rights Act, the provision that bans workplace bias based on race, religion, national origin or sex. Multiple court rulings back Maley's contention that Congress meant for the word to refer only to whether a worker was male or female. Given that, he said it would be wrong to stretch the meaning of 'sex' in the statute to also include sexual orientation.
The school's lawyer conceded the law is imprecise, but added: "That makes it an issue for Congress."
Several judges challenged him for arguing it's not a federal court's place to mandate that a law do something lawmakers didn't originally intend for it to do.
"You seem to think the meaning of the statute was frozen on the day it passed," Posner said to Maley. "That, of course, is false." And the judge added: "Are we bound by what people thought in 1964?"
He and other judges pointed to bans on interracial marriage as examples of laws that changed or were expanded by courts as societal norms changed.
In his presentation, the teacher's lawyer pointed to what he described as the absurdity of one 1980s Supreme Court finding that if workers are discriminated against because they don't behave around the office by norms of how men or women should behave, then that does violate the Civil Rights Law. But if a man or woman is discriminated against at work for being gay that was found not to violate the Civil Rights Act.
"You can't discriminate against a woman because she rides a Harley, had Bears tickets or has tattoos," attorney Gregory Nevins said. "But you can if she's lesbian."
Jeff Banter, senior vice presidnet of student experience, communications and marketing at Ivy Tech issued a statement denying the school discriminated against Hively.
"Ivy Tech rejects discrimination of all types, sexual orientation discrimination is specifically barred by our policies, and the college did not engage in such discrimination in this case. If sexual orientation discrimination were found to be prohibited by existing law, we are well prepared to defend this case on the merits as Kimberly Hively experienced no such discrimination at Ivy Tech."