Pittsburgh Post-Gazette

Workers can’t be fired because of sexual orientatio­n, court rules


It used to be legal in 28 states — including Pennsylvan­ia — for employers to fire someone based on his or her sexual orientatio­n or gender identity, but a federal appeals court this month ruled that employees are protected from workplace discrimina­tion under the 1964 Civil Rights Act outlawing discrimina­tion based on race, sex or religion.

The decision by the full 7th U.S. Circuit Court of Appeals in Chicago found that federal anti-discrimina­tion laws about the workplace also apply to members of the lesbian, gay, bisexual and transgende­r community, whose members have of-ten felt compelled to keep their personal lives a secret while in the office.

“What this does is it brings sexual preference into the whole universe of Ti-tle VII of the Civil Rights Act of 1964, which prohibits job discrimina­tion based on race, color, sex, religion and national origin,” said Samuel Cordes, managing attorney at Samuel J. Cordes Associates, Downtown.

Before the court ruling, he said, a gay couple could have been married on a Saturday — after the Supreme Court allowed same-sex marriage — and fired from their jobs on Monday because of that marriage. “But now it is against the law to discrimina­te against workers based on their sexual preference,” he said.

The federal appeals court case stems from a lawsuit by an Indiana teacher, Kimberly Hively, alleging that Ivy Tech Community College in South Bend, Ill., didn’t hire her full time because she is a lesbian.

Tom Spiggle, a former federal prosecutor who now leads an Arlington, Va., law firm focused on workplace discrimina­tion, said the court decision is a significan­t ruling that gay rights advocates are likely to battle before the Supreme Court as they seek to broaden its scope.

“It is still limited in that the protection only applies to states in the 7th Circuit,” Mr. Spiggle said, pointing out that Pennsylvan­ia is not in the territory. “If a case like this were to come up in Pennsylvan­ia, courts would not be required to follow this decision.” The 7th Circuit includes Illinois, Indiana and Wisconsin.

But he said courts could use the Hively case as a basis for finding that Title VII prevents discrimina­tion against LGBT employees in the workplace.

“It sets the stage for broader protection­s outside the 7th Circuit,” he said, adding that Virginia also is

not in that circuit. “There is no question it will be decided by the Supreme Court as early as 2018.

“As someone who practices discrimina­tion law, it is dishearten­ing when we see someone who has been discrimina­ted on the basis of sexuality because, until this court decision, there was very little we could do about it.”

The 7th Circuit’s opinion was the first federal appellate court to read Title VII’s “because of sex” language to encompass discrimina­tion based on sexual preference.

Mr. Cordes said other federal courts of appeals have flirted with the issue.

For example, the 3rd Circuit — which covers Pennsylvan­ia, New Jersey, Delaware and the Virgin Islands — has held that discrimina­tion against a gay man because he did not fit the stereotype of how men “are supposed to act” could be “because of sex” but otherwise held that the language of Title VII did not on its face preclude discrimina­tion because of sexual preference.

“What the 7th Circuit did was cut through all of this and held that ‘because of sex’ is broad enough to encompass ‘because of sexual preference’ because if the gay man was a woman and therefore engaged in heterosexu­al activity, he would have been treated differentl­y, and the only ‘X’ factor was because he is a man,” Mr. Cordes said.

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