LGBT Workplace Discrimination Is Likely Headed to the Supreme Court

Yesterday the 7th Circuit Court of Appeals issued an important ruling.

A federal appeals court ruled Tuesday that workers may not be fired for their sexual orientation, becoming the highest court in the country to find that the 1964 Civil Rights Act protects gays from workplace discrimination and setting up a possible Supreme Court battle.

The U.S. Court of Appeals for the 7th Circuit, based in Chicago, found that instructor Kimberly Hively was improperly passed over for a full-time job at Ivy Tech Community College in South Bend, Ind., because she was a lesbian. While the Civil Rights Act does not explicitly prohibit discrimination on the basis of sexual orientation, it bars sex discrimination; the court concluded that the college engaged in sex discrimination by stereotyping Hively based on her gender.

Given that this ruling conflicts with a recent finding by a panel of the 11th Circuit Court of Appeals in Atlanta, the case over whether it is legal to discriminate against LGBT people in the workplace is almost certainly headed to the Supreme Court. A ruling there could be as momentous as the Obergefell vs Hodges case that brought us marriage equality.

The battle for LGBT civil rights has actually focused on this issue, with the introduction of the Employment Non-Discrimination Act (ENDA) in every Congress since 1994, except the 109th. While marriage equality eventually took center stage, that was a reaction to the passage of the Defense of Marriage Act (DOMA) in 1996 and the fact that Republicans thought that placing initiatives to ban gay marriage on the ballot in 2004 would help re-elect George W. Bush (that idea is often credited to Karl Rove).

While marriage equality has always been important, fighting that battle first was primarily a reaction to Republican attempts to use gay marriage as a cultural wedge issue. Ensuring the civil rights of LGBT people in the workplace got lost in the background for awhile. But for LGBT people, those issues have always been equally, if not more important to their daily lives.

As the quote above explains, the arguments in the current case are based on the premise that, while the 1964 Civil Rights Act doesn’t name sexual orientation as a protected class, it can be applied based on the fact that it bars sexual discrimination. That is an entirely different case than the one on marriage equality – which was based on the Fourteenth Amendment’s Due Process and Equal Protection Clauses. So it is difficult to know how individual judges (primarily Justice Kennedy) will react. But given that Obergefell vs. Hodges was decided 5-4 with Scalia dissenting, it doesn’t appear that confirmation of Gorsuch to the Supreme Court would have much of an impact – other than to prevent the mess of a 4-4 tie if Scalia’s seat was still open and Kennedy sided with the defendants.

So buckle up – we may be headed to a Supreme Court decision on workplace discrimination against LGBT Americans. That would be yuuuuuge!

Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly.