In a groundbreaking decision for equality, a federal appeals court on Tuesday ruled that LGBTQ people cannot be fired for their sexual orientation on the grounds that it violates the 1964 Civil Rights Act—a ruling that sets up a possible Supreme Court showdown.
The U.S. Appeals Court for the Seventh Circuit in Chicago found 8-3 that Kimberly Hively, an instructor at Ivy Tech Community College in South Bend, Indiana, was denied a full-time position because she was a lesbian, which the panel said went against Title VII of the 1964 law.
Although the Civil Rights Act does not explicitly block discrimination on the basis of sexuality, it does prohibit it on the basis of gender. The court found that Hively was passed over because of gender prejudice.
"Hively represents the ultimate case of failure to conform to the female stereotype... she is not heterosexual," Chief Judge Diane Wood wrote in the opinion. "Our panel described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all."
"Hively's claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing," Wood wrote. "The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man)."
The Seventh Circuit is the highest court thus far to rule on the issue. But it conflicts with a decision last month by the 11th Circuit, which found in a separate case that that the Civil Rights Act did not protect sexual orientation.
A split in the circuits could lead to a confrontation in the Supreme Court.
"I have been saying all this time that what happened to me wasn't right and was illegal," said Hively. "No one should be fired for being lesbian, gay, or transgender like happened to me and it's incredibly powerful to know that the law now protects me and other LGBT workers."
Hively filed suit in 2014. She alleged she was denied a full-time position after she was seen kissing her then-girlfriend in the parking lot. The case was dismissed by a trial court, but the LGBTQ-focused law firm Lambda Legal appealed in 2015.
"Love won again today," said Lambda Legal CEO Rachel B. Tiven. "Kim Hively loved her job teaching math at Ivy Tech Community College, but she was fired because she is a lesbian. Today the Seventh Circuit said clearly: that's wrong. Our movement is about love and pride. Pride in yourself and your work, and the freedom to love and to be treated equally."
Greg Nevins, director of the organization's Employment Fairness program, added, "This decision is gamechanger for lesbian and gay employees facing discrimination in the workplace and sends a clear message to employers: it is against the law to discriminate on the basis of sexual orientation."