Attorneys optimistic Ivy Tech case will extend Title VII protections

Although the 7th Circuit Court of Appeals is still wrestling with the question of whether Title VII protections extend to lesbian, gay and bisexual individuals, Lambda Legal is confident a favorable decision will come even if the question has to ultimately be settled by the U.S. Supreme Court.

Speaking on a conference call Tuesday morning, Greg Nevins, director of Lambda Legal’s employment fairness program, said judges in the 7th and 11th circuits, where these cases have been argued, seem to be convinced that discrimination based on sexual orientation is prohibited by Title VII of the 1964 Civil Rights Act. To Nevins, the positive reception indicates a favorable ruling will come at some point.  

“We’re playing with the house’s money,” he said.

Lambda Legal is a nonprofit advocating for full recognition of civil rights for members of the LGBT community as well as individuals living with HIV.

The group is representing the Kimberly Hively in the Title VII case pending before the 7th Circuit, Hively v. Ivy Tech Community College, 15-1720. It is also representing Jameka Evans in a similar Title VII case, Evans v. Georgia Regional Hospital, 15-15234, which is before the 11th Circuit.

A ruling in favor of Lambda Legal’s clients would bring a “really remarkable sea change” to the law and would open the door to extending protections in Title IX, the Fair Housing Act and other federal laws to members of the LGBT community.

Jon Davidson, legal director at Lambda Legal, pointed out a ruling for the plaintiff in either the 7th or 11th Circuit could be the first time an appellate court has found Title VII includes sexual orientation. Multiple district courts have agreed with that position and the federal Equal Employment Opportunity Commission has also taken that view.

In the case before the 7th Circuit, Hively contends her employment contract to teach math at Ivy Tech Community College in South Bend was not renewed because she is a lesbian. The Chicago panel agreed with Ivy Tech’s position that Title VII does not cover sexual orientation, but the majority opinion made a special effort to discuss the confusion in the federal courts over how far the protections extend.

Consequently, Hively successfully petitioned for an en banc hearing from the 7th Circuit. Oral arguments were Nov. 30.

Nevins said his organization will be on “very high alert” for a ruling from the Chicago court. He noted past en banc decisions have come from the 7th Circuit as quickly as two to three months after oral argument but generally they have been issued five to 11 months later.

The core of Lambda Legal’s argument is that discrimination based on sexual orientation is a form of sex discrimination which is prohibited by Title VII. As Davidson explained, if an employer fires a lesbian for kissing her partner, but would not terminate a male employee for the same behavior, then the employer has discriminated against the female worker because of her gender.

If the 7th Circuit upholds precedent and finds Title VII does not include sexual orientation, Nevins said    Lambda Legal “would be compelled” to appeal to the Supreme Court. Also, if the appellate court rules against Ivy Tech, he speculated community college could turn to Supreme Court as well.

Although Lambda Legal is actively opposing the confirmation of Judge Neil Gorsuch to the Supreme Court, a first for the organization, both Nevins and Davidson remain optimistic about the chances for the Title VII case.

Davidson said if the justices stick to their principles and previous points of view, even if Gorsuch dissents, there will still be enough votes to favor Hively.

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