The full Seventh Circuit Court of Appeals in Chicago heard arguments Wednesday on whether the 1964 Civil Rights Act should be expanded to protect LGBT employees.
Kimberly Hively was a math teacher at Ivy Tech Community College in Indiana. She alleges she was denied promotions and eventually fired because she is a lesbian. According to the ACLUD, 22 states and the District of Columbia have anti-discrimination laws on the basis of sexual orientation. Indiana, where Hively worked, is not one of them.
Title VII of the 1964 Civil Rights Act prohibits employers from discriminating against employees based on sex, race and religion. It does not explicitly prohibit discrimination based on sexual orientation.
Hively’s case was previously thrown out on that basis by a three judge appellate court panel, which said that Congress or the Supreme Court would need to weigh in. But the same panel was critical of the lack of protections for sexual orientation.
The full appellate court of 11 judges decided to hear Hively’s case. Attorney Greg Nevins, who represents Hively, said his client was discriminated based on sex.
“Anything a woman is fired for that is okay for a man to do is sex discrimination. That includes marrying a woman, dating a woman, being romantically interested in a woman,” he said.
Ivy Tech attorney John Maley maintained the argument that it’s up to Congress to decide whether the specific language of “sexual orientation” should be added to the federal law. He argued that the current law narrowly interprets “sex” as gender and not sexual orientation.
But Judge Richard Posner said courts sometimes broadened a law's scope and suggested it may be time to broaden the 52-year-old landmark law.
Posner asked, "Who will be hurt if gays and lesbians have a little more job protection?"
Maley said he couldn't think of anyone. Posner responded, "So, what's the big deal?"
There’s no clear timeline of when the appellate court will issue a ruling. If they rule in Hively’s favor, she can argue her case before the lower court. Depending on the outcome, the case could potentially go before the U.S. Supreme Court.
The Associated Press contributed to this report.
Susie An is a reporter with WBEZ. You can follow her @soosieon.