Editorial: Court should ban sexual orientation discrimination

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In Indiana, you can get married on Saturday and fired on Monday for doing just that.

Same-sex marriage is legal in Indiana, as it is in every state, but no law in Indiana — federal or state — protects people from being fired based on their sexual orientation.

It is an unconscionable state of affairs in Indiana and 27 other states, though not in Illinois, where state law prohibits such discrimination.

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Federal protections are long overdue. Nobody should be denied their basic civil rights just because they work in the wrong state. But given the election of Donald Trump as president and the continued control of Congress by conservative Republicans, the necessary change almost certainly will have to come by way of court rulings, not legislation.

Fortunately, the U.S. Court of Appeals in Chicago is reconsidering its long-held views on this matter in a potential landmark case. Oral arguments are scheduled for Wednesday morning. In the best possible outcome, the appellate court will overturn precedent and rule that Title VII of the U.S. Civil Rights Act — as already written — prohibits employees from being punished or fired because of their sexual orientation.

That ruling, of course, then would move up for review by the U.S. Supreme Court.

If the appellate court rules in this way, it would not, as critics contend, be cavalierly rewriting the history of Title VII. Nor would the court be disregarding the intent of Congress. The court would be recognizing that not all protections implicit in a civil rights law are necessarily apparent at the time the law is enacted; some protections are teased out over time. And distinctions that once may have seemed easy to make — such as the difference between discrimination based on a person’s sex and discrimination based on a person’s sexual orientation — can become a complete muddle.

In the case of Hively v. Ivy Tech, an adjunct professor of math at a community college in South Bend, Indiana, claims she was denied full-time employment and a promotion because she is a lesbian. The professor, Kimberly Hively, claims her employer, Ivy Tech, violated the protections of Title VII, which prohibits discrimination based on “race, color, religion, sex or national origin.” But Ivy Tech counters that while Title VII prohibits discrimination based on sex — to refuse, for example, to promote an employee simply because she is a woman — it does not prohibit discrimination based on sexual orientation. So Hively, Ivy Tech argues, has no case.

Last year, a federal district court ruled in Ivy Tech’s favor, citing earlier court decisions as to the proper reading of the meaning of Title VII. In July, a three-judge panel of the Court of Appeals for the Seventh Circuit, based in Chicago, upheld the lower court’s ruling, agreeing Hively has no case.

But in a written opinion explaining that ruling, Judge Ilana Rovner all but welcomed the full appellate court to reconsider the whole business, saying so much has changed in the law and the world since those earlier interpretations of Title VII. The very idea that a person’s sex can be treated in the law as entirely separate and unrelated to a person’s sexual orientation, Rovner wrote, looks ever more dubious. She called particular attention to a ruling by the federal Equal Employment Opportunity Commission last year that “sexual orientation is inherently a sex-based consideration.”

The EEOC gave the example of an employee who puts a photo of a female spouse on his or her desk at work. If the employee is a man, there’s no problem. But if the employee is a woman, the boss can fire the employee — at least in states such as Indiana. Clearly the sex of the employee — the plain language concern of Title VII — matters.

Rovner cites various other ways in which the court’s traditional reading of Title VII increasingly defies common sense. Her written opinion is, in fact, the source of the example used at the beginning of the editorial: A gay person can get married on Saturday, to a same-sex partner, and be fired for doing so on Monday.

But, Rovner writes, if Title VII “protects from discrimination a white woman who is fired for romantically associating with an African-American man, then logically it should also protect a woman who has been discriminated against because she is associating romantically with another woman.”

“It seems unlikely,” Rovner writes further on, “that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love or marry.”

Back in July, Rovner the legal scholar ruled one way, but her heart would have ruled another way. We see no reason for the disconnect. The judge’s own 42-page opinion offers strong and convincing arguments in favor of the full appellate court extending the protections of Title VII to include sexual orientation.

As Rovner writes in conclusion: “Perhaps the writing is on the wall.”

Yes. And there’s no “perhaps” about it.

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