U.S. court rules 1964 civil rights law protects LGBT workers from bias

Reuters ^ | April 5, 2017 | by Joseph Ax

[Oldeconomybuyer]

A U.S. appeals court, for the first time ever, on Tuesday ruled that federal civil rights law protects lesbian, gay, bisexual and transgender employees from discrimination in the workplace.

The ruling from the 7th U.S. Circuit Court of Appeals in Chicago represents a major legal victory for the gay rights movement.

In its 8-3 decision, the court bucked decades of rulings that gay people are not protected by the milestone civil rights law, because they are not specifically mentioned in it.

"For many years, the courts of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person's sexual orientation," Chief Judge Diane Wood wrote for the majority. "We conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination."

The ruling also allows a lawsuit to go forward in Indiana, where plaintiff Kimberly Hively said she lost her community college teaching job because she is lesbian.

[Pollster1]

This is why we need Justice Gorsuch. LBGT is not in the law, and it’s not in the Constitution. I assume he would reverse this frivolous decision.

[Jacquerie]

Agree. It attempted to repeal the Natural Law right of freedom of association. Fags needn’t ask me to bake a cake.

[rmlew]

1. This ruling is open contempt for the rule of law, the courts and Constitution.
2. Goldwater was right about the tyranny of the Civil Rights Act

[Trillian]

Maybe companies will get wise and not hire them. All they do is cause problems everywhere they go because they are mentally ill.

[hawg-farmer - FR..October 1998]

What about HERMAPHRODITES? he he if a HERMAPHRODITE has sex with a HERMAPHRODITE is it GAY? HE HE If a HERMAPHRODITES has sex with a Hetro or a (CIS) is it GAY? HE If Batman and Superman well you get the idea..

[Sgt_Schultze]

Congress should begin a policy of impeaching for cause, federal judges whose opinions are overturned by the SC. This incrementalism must stop. The activists know there is a limit on how many cases the SC will review. Activism wins when the SC doesn’t hear an appeal.

[Carl Vehse]

1. From Sykes' dissenting opinion, Bauer and Kanne joining:

Sexual orientation is not on the list of forbidden categories of employment discrimination [of Title VII of the Civil Rights Act of 1964], and we have long and consistently held that employment decisions based on a person’s sexual orientation do not classify people on the basis of sex and thus are not covered by Title VII’s prohibition of discrimination “because of sex.”... This interpretation has been stable for many decades and is broadly accepted; all circuits agree that sexual-orientation discrimination is a distinct form of discrimination and is not synonymous with sex discrimination.

Today the court jettisons the prevailing interpretation and installs the polar opposite. Suddenly sexual-orientation discrimination is sex discrimination and thus is actionable under Title VII. What justification is offered for this radical change in a well-established, uniform interpretation of an important—indeed, transformational—statute? My colleagues take note of the Supreme Court’s “absence from the debate.” Id. at p. 4. What debate? There is no debate, at least not in the relevant sense. Our long-standing interpretation of Title VII is not an outlier. From the statute’s inception to the present day, the appellate courts have unanimously and repeatedly read the statute the same way, as my colleagues must and do acknowledge. [Hively v. Ivy Tech, p. 43]

[Carl Vehse]

2. From Sykes' dissenting opinion, Bauer and Kanne joining:

Title VII does not define discrimination “because of sex.” In common, ordinary usage in 1964—and now, for that matter—the word “sex” means biologically male or female; it does not also refer to sexual orientation....

The two terms are never used interchangeably, and the latter is not subsumed within the former; there is no overlap in meaning. Contrary to the majority’s vivid rhetorical claim, it does not take “considerable calisthenics” to separate the two. Majority Op. at p. 20. The words plainly describe different traits, and the separate and distinct meaning of each term is easily grasped. More specifically to the point here, discrimination “because of sex” is not reasonably understood to include discrimination based on sexual orientation, a different immutable characteristic. Classifying people by sexual orientation is different than classifying them by sex. The two traits are categorically distinct and widely recognized as such. There is no ambiguity or vagueness here. [Hively v. Ivy Tech, pp. 47-8]

[Carl Vehse]

3. From Sykes' dissenting opinion, Bauer and Kanne joining:

This appeal has nothing to do with Hively’s factual allegations. We have only a legal question about the meaning of Title VII. [Hively's legal defense team] Lambda Legal [Defense & Education Fund] is advancing a creative new legal argument for reinterpreting Title VII, deploying the comparative method not as a method of proof (its normal and intended function) but as a thought experiment with the end of imbuing the statute with a new meaning that it did not bear at its inception. [Hively v. Ivy Tech, p. 52]

Here the majority is not using the comparative method to isolate whether Ivy Tech was actually motivated by Hively’s sex when it refused to promote her to full-time professor and canceled her part-time teaching contract. To repeat, Hively does not make that allegation. Her factual claim is that Ivy Tech refused to promote her and canceled her contract because she is a lesbian. The only question for us is whether that claim—her real claim—is actionable under Title VII as a matter of law. That’s a pure question of statutory interpretation. [Hively v. Ivy Tech, p. 53-4]

[Carl Vehse]

4. From Sykes' dissenting opinion, Bauer and Kanne joining:

If an employer is willing to hire gay men but not lesbians, then the comparative method has exposed an actual case of sex discrimination. If, on the other hand, an employer hires only heterosexual men and women and rejects all homosexual applicants, then no inference of sex discrimination is possible, though we could perhaps draw an inference of sexual-orientation discrimination.

But of course my colleagues are not actually trying to isolate sex discrimination as the real motivation for Ivy Tech’s decision. They are not, that is, testing for a true case of sex discrimination. They are using the comparative method as a rhetorical device to conjure an entirely new understanding of the term “sex discrimination” for use in the Title VII context, one that denies the reality that sex and sexual orientation are different traits and that classifying people by sexual orientation is not the same as classifying them by sex. This is artifice, not interpretation. [Hively v. Ivy Tech, p. 55]

[Carl Vehse]

5. From Sykes' dissenting opinion, Bauer and Kanne joining:

The majority deploys a judge-empowering, common-law decision method that leaves a great deal of room for judicial discretion. So does Judge Posner in his concurrence. Neither is faithful to the statutory text, read fairly, as a reasonable person would have understood it when it was adopted. The result is a statutory amendment courtesy of unelected judges. Judge Posner admits this; he embraces and argues for this conception of judicial power. The majority does not, preferring instead to smuggle in the statutory amendment under cover of an aggressive reading of loosely related Supreme Court precedents. Either way, the result is the same: the circumvention of the legislative process by which the people govern themselves. [Hively v. Ivy Tech, p. 41]

Judicial statutory updating, whether overt or covert, cannot be reconciled with the constitutional design. The Constitution establishes a procedure for enacting and amending statutes: bicameralism and presentment. See U.S. CONST. art. I, § 7. Needless to say, statutory amendments brought to you by the judiciary do not pass through this process. That is why a textualist decision method matters: When we assume the power to alter the original public meaning of a statute through the process of interpretation, we assume a power that is not ours. The Constitution assigns the power to make and amend statutory law to the elected representatives of the people. However welcome today’s decision might be as a policy matter, it comes at a great cost to representative self-government. [Hively v. Ivy Tech, p. 42. Emphasis added]

[Carl Vehse]

Here are the 7th Circuit court of Appeals majority judges, the year they were appointed, and by whom:

Chief Judge Diane Pamela Wood, 1995, Clinton
Circuit Judge Richard Posner, 1981, Reagan
Circuit Judge Joel Martin Flaum, 1983, Reagan
Circuit Judge Frank H. Easterbrook, 1985, Reagan
Circuit Judge Ilana Rovner, 1992, G.H.W. Bush
Circuit Judge Ann Claire Williams, 1999, Clinton
Circuit Judge David F. Hamilton, 2009, Obama
Senior Circuit Judge Kenneth Francis Ripple, 1985, Reagan

Here are the dissenting judges, the year they were appointed, and by whom:

Circuit Judge Michael Stephen Kanne, 1987, Reagan
Circuit Judge Diane S. Sykes, 2004, G.W. Bush
Senior Circuit Judge William Joseph Bauer, 1974, Ford