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Ruling extends protections: Will the Supreme Court weigh in?

A decision out of the U.S. Court of Appeals for the 7th Circuit sets the stage to prohibit workplace discrimination based on sexual orientation. Several other federal courts have recently reached opposing decisions, so the issue may be heading for the Supreme Court.

Chief Judge Diane Wood wrote for the panel in an 8-3 recent decision: "Any discomfort, disapproval, or job decisions based on the fact that the complaintant - man or woman - dresses differently, speak differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex. That means it falls within Title VII's prohibition against sex discrimination, if it affects employment in one of the specified ways." What does this mean for employees?

The facts in the Hively case

Kimberly Hively was a part-time instructor at Ivy Tech Community College in South Bend, Indiana. She applied for six different full-time jobs, but was never offered a position. Then in 2014, she was let go.

She alleged that the community college discriminated against her, because she was an open lesbian. The lower court dismissed her claim at an early stage finding that the Civil Right Act offered no protections based on sexual orientation.

But she had represented herself when she was unable to find an attorney who thought she could win. This was because Title VII makes it unlawful to discriminate based on an "individual's race, color, religion, sex or national origin." Courts have routinely ruled narrowly that this does not cover sexual orientation.

The community college has decided not to appeal the appellate decision to the Supreme Court, so this case will go back to the lower court. Ms. Hively will now have the opportunity to present her case against the school.

Divided courts

Last month, a ruling from the U.S. Court of Appeals for the 11th Circuit based in Atlanta found exactly the opposite. It held that sexual orientation is not a protected class.

In New York, a federal court dismissed a case brought by an employee who was allegedly taunted because he is gay. A three-judge appeals panel in the Second Circuit then ruled against the employee, but did note shifting societal views that support legal protections for gay people.

The Equal Employment Opportunity Commission had however taken the position that Title VII includes a prohibition against discrimination on the basis of sexual orientation in one of its decision from 2015.

At some point, the Supreme Court may be asked to make a final decision on the issue. But looking at the trajectory of its cases in this area of gay rights it seems plausible that they would follow the rationale of the EEOC and 7th Circuit.

Broader Michigan Protections

Michigan state law also provides certain protections that include the federal categories AND "genetic information, age, marital status, height, weight, arrest record or disability." A complaint may be filed with the state agency if a negative employment decision is based on one of these categories. For example, if you are denied a promotion, because of your age.

Detroit, East Lansing, Kalamazoo and nearly 20 municipalities across Michigan have also have passed nondiscrimination ordinances based on sexual orientation.

While the federal decision was from a neighboring circuit, it may indicate a shift in federal law to extend Civil Rights Act protections. If you have concerns that a negative employment decision was based on your sexual orientation or gender identity, contact an employment attorney at NachtLaw. You may have more rights that you realize.

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