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Friday, December 02, 2016

Ind. Courts - "Workplace Bias Against Gays Could Be Illegal, 7th Cir. Judges Hint"

A long, excellent story by Michael J. Bologna of Bloomberg BNA, about the en banc oral argument November 30th in Kimberly Hively v. Ivy Tech Community College, begins:

Discrimination based on sexual orientation might be prohibited by federal law, several Seventh Circuit judges suggested, raising hopes among gay rights advocates that the court is poised to fill a gap in the nation’s anti-bias laws.

Six of the 11 judges of the U.S. Court of Appeals for the Seventh Circuit questioned an Indiana employer’s assertion that Title VII of the 1964 Civil Rights Act offers no protection to a lesbian employee who said she was discriminated against because of her sexual orientation.

The judges, hearing oral arguments Nov. 30, expressed frustration with the employer’s strict interpretation of the plain language of the statute.

A critical question before the court is whether Title VII’s prohibition against discrimination on the basis of sex includes discrimination based on sexual orientation.

Title VII says nothing about protections for individuals based on sexual orientation, and Congress has declined to add sexual orientation as a protected class under the statute, John Maley, the attorney for the employer, Ivy Tech Community College, told the court.

But the panel peppered Maley with questions and viewpoints asserting a more expansive understanding of sex in the context of employment discrimination. The judges also pointed to the court’s authority to broaden the statute to adapt to changing social conditions.

“Constantly, judges are reinterpreting statutes in ways that are not consistent with the actual thinking of the people who enacted the statute,” Judge Richard Posner said. “Why isn’t this a perfect case for that?”

Posted by Marcia Oddi on December 2, 2016 06:15 PM
Posted to Ind. (7th Cir.) Decisions