Originally published: April 11, 2017
Efforts in Congress to protect gay men and lesbians from discrimination in the workplace have languished for years. But last week a federal appeals court in Chicago ruled that Congress already has made such discrimination illegal. That may sound like an audacious conclusion, but it’s the correct one.
In an 8-3 ruling, the U.S. 7th Circuit Court of Appeals held that Title VII of the 1964 Civil Rights Act, which bans job discrimination on the basis of “sex,” must also be read to prohibit discrimination on the basis of sexual orientation. The court ruled that Kimberly Hively, a part-time community college professor in Indiana, could pursue her claim that she was denied a full-time job because she was a lesbian.
In 1964, when Congress enacted Title VII, few if any members of Congress were thinking about discrimination against gay men and lesbians. The modern gay rights movement was in its infancy. But Chief Judge Diane Wood, writing for the majority, made a persuasive case that “sex discrimination” includes not just discrimination based on gender, but also discrimination on the basis of sexual orientation. Her legal analysis should be endorsed by the Supreme Court, which likely will have the final say on this issue.