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U.S. Courts Divided Over Anti-Discrimination Protections For LGBT Workers

Apr 13, 2017
Originally published on April 15, 2017 6:09 am
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U.S. courts are divided on whether workplace anti-discrimination laws protect gay, lesbian and bisexual employees. Last week, a federal appeals court in Chicago said existing laws do bar discrimination based on sexual orientation. But lower courts and a federal appeals court in Atlanta have said no, they don't. NPR's Yuki Noguchi reports on the patchwork of conflicting interpretations.

YUKI NOGUCHI, BYLINE: Kimberly Hively gave her a girlfriend a goodbye kiss one morning in 2009 during a drop-off at Ivy Tech Community College in Indiana where Hively had taught math for eight years. That afternoon, she received a stern call from the administrator's office.

KIMBERLY HIVELY: Somebody had reported me for being outside, sucking face with a girl, and they wanted to remind me of my professionalism.

NOGUCHI: Hively was taken aback. She'd gotten good reviews, but says the school denied her every job she applied for after that call.

HIVELY: And I was also told by a coworker that they were not very happy with me because I didn't wear a skirt to one of the interviews.

NOGUCHI: After Hively filed a complaint with the Equal Employment Opportunity Commission in 2013, Ivy Tech didn't renew her contract.

HIVELY: They didn't say you're fired. They didn't say, we're letting you go. They just didn't put me on the schedule.

NOGUCHI: In a statement, Ivy Tech says it has an anti-discrimination policy covering gay and lesbian employees and denies it mistreated Hively. Hively sued for discrimination even though she knew legal precedent was not on her side.

HIVELY: I knew that there was no language that protected me.

NOGUCHI: Last week, Hively prevailed. The 7th Circuit Court of Appeals reversed its own prior rulings, saying civil rights laws prohibiting discrimination on the basis of sex - as in gender - also includes sexual orientation. That put it at odds with rulings in every other federal appeals court.

DAVID LOPEZ: I think it was one of the most significant appellate civil rights decisions in many, many years.

NOGUCHI: David Lopez is former general counsel for the EEOC, who now represents workers. He says the core question - whether the law's definition of sex includes sexual orientation - has been a key point of debate. The Supreme Court has not yet weighed in on that question but has ruled that discrimination on the basis of gender stereotyping is illegal. However, Lopez notes, lower courts are divided over whether sexual-orientation discrimination qualifies as gender stereotyping.

The issue is further complicated because nearly half of states already ban discrimination on the basis of sexual orientation and gender identity. So effectively, different rules apply in different regions of the country. Lopez says last week's ruling will prompt a reversal of decades of decisions against LGBTQ workers.

LOPEZ: What we're going to see is we're going to see the dominos fall.

NOGUCHI: Greg Nevins is an attorney for Lambda Legal who argued Hively's case. Nevins says there are other factors, notably the recent federal legalization of gay marriage, that are also forcing courts to reconsider previous positions on sex-orientation discrimination. He says he hopes last week's ruling will have impact beyond the courts.

GREG NEVINS: What every person who's a target of discrimination wants is not to have discrimination happen in the first place. So to the extent that a ruling like this speaks loudly and clearly, hopefully the net result of that is that the discrimination just won't happen in the first place.

NOGUCHI: It's not that the 7th Circuit ruling won't face challenges. Michelle Phillips, an attorney representing management, says most large employers already have their own internal policies barring discrimination against gay and lesbian employees. But she anticipates there will be some employers that come forward to challenge this ruling.

MICHELLE PHILLIPS: There absolutely is a conservative religious movement for which you will see a backlash and a testing of this decision.

NOGUCHI: Experts agree the country's legal inconsistencies will eventually have to be resolved at the Supreme Court or in Congress. Yuki Noguchi, NPR News, Washington. Transcript provided by NPR, Copyright NPR.