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For 1st Time, Federal Appeals Court Says Workers Can’t Be Fired For Being Gay

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Landmark case could be headed for Supreme Court

By Ariane de Vogue
CNN

The Civil Rights Act prohibits workplace discrimination against LGBT employees, a federal appeals court ruled for the first time on Tuesday.

“We conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination,” Judge Diane Wood wrote for the 7th U.S. Circuit Court of Appeals.

The 8-3 ruling is a victory for Kimberly Hively, who sued Ivy Tech Community College, arguing that the school violated Title VII of the Civil Rights Act of 1964 when it denied her employment.

“Any discomfort, disapproval, or job decision based on the fact that the complainant—woman or man—dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex,” Wood wrote.

“That means that it falls within Title VII’s prohibition against sex discrimination, if it affects employment in one of the specified ways,” Wood added.

“This decision is (a) game-changer for lesbian and gay employees facing discrimination in the workplace and sends a clear message to employers: it is against the law to discriminate on the basis of sexual orientation,” said Greg Nevins of Lambda Legal, the group that brought the case.

Dissent: Sex and orientation are different

Judge Diane Sykes, a top contender for the Supreme Court under President Donald Trump, wrote the dissent for three members of the court, calling the majority opinion “momentous”.

She said that if Hively was denied a job because of her sexual orientation, she was “treated unjustly.”

“But Title VII does not provide a remedy for this kind of discrimination. The argument that it should must be addressed to Congress,” Sykes wrote. She said that classifying people by sexual orientation is “different” than classifying them by sex.

“The two traits are categorically distinct and widely recognized as such,” she said.

Five other Republican appointees disagreed—joining the court’s majority decision.

Next stop, Supreme Court?

“Federal anti-discrimination laws were always going to be the next battleground after the Supreme Court’s gay marriage decision,” said Steve Vladeck, professor of law at the University of Texas and CNN legal analyst. “And in some respect, these laws are even more important, because they also apply to private parties—such as employers.”

Tuesday’s ruling conflicts with a different appellate court ruling—in the 11th Circuit Court of Appeals—from last month that found that Title VII does not bar claims of discrimination based on sexual orientation, possibly teeing the issue up for Supreme Court review.

The 7th Circuit covers Illinois, Indiana and Wisconsin, where it is effective immediately.

This critically important Circuit Court decision has adopted a well-grounded legal analysis concluding that our nation’s civil rights laws include sexual orientation,” said HRC Legal Director Sarah Warbelow.

“Today’s ruling is a monumental victory for fairness in the workplace, and for the dignity of lesbian, gay and bisexual Americans who may live in fear of losing their job based on whom they love,” said Sarah Warbelow, legal director for the Human Rights Campaign.

Read the court’s full decision here.

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John Wright

John Wright is the editor of OutSmart magazine. He has spent two decades in the mainstream and LGBTQ media. Most recently, he served as senior editor of Dallas Voice, and covered LGBTQ issues in the state Legislature for The Texas Observer. Born and raised in Philadelphia, Wright earned his bachelor's degree in journalism from the University of Florida. He resides in the EaDo area of Houston, where he is currently remodeling a 1930s row house.
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