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Monday, August 29, 2016

Sen. Cory A. Booker and Other Members of Congress File Brief to Clarify and Expand Civil Rights Protections for Lesbian Employee and Other LGBT

On August 25, 2016, five Members of Congress, Senators Jeffrey A. Merkley, Tammy Baldwin and New Jersey’s own Senator Cory A. Booker,  and Representatives David N. Cicilline and Mark Takano, signed an amici curiae brief in support of Plaintiff-Appellant Kimberly Hively's petition for a rehearing of the Seventh Circuit’s decision in her case against her employer, Ivy Tech Community College in which she alleges her employer discriminated against her because she is a lesbian. In that case, the Seventh Circuit upheld the lower District’s Court decision that Kimberly Hively was not discriminated in Violation of Title VII, on the reasoning that Title VII prohibits discrimination based on sex but not sexual orientation. This decision, decided July 28, 2016,  was rendered three weeks after the Equal Employment Opportunity Commission EEOC released a report that it will affirmatively enforce Title VII to include sexual orientation and gender identity. The EEOC’s report previously issued on July 8, 2016, stated that based on an accumulation of Supreme Court and other Federal Court opinions that it interprets Title VII's prohibition on sex discrimination as including employment discrimination based on sexual orientation and gender identity. Unfortunately for LGBT Americans, the EEOC’s more aggressive initiative regarding LGBT Americans and Title VII has not yet had influence on Court Decisions such as the recent Hiverly v. Ivy Tech Community College. 

To the dismay of many, the Seventh Circuit Court of Appeals upheld a dismissal of a lawsuit filed by Hively, a teacher at Ivy Tech Community College, on the grounds that there was no legal basis covering her discrimination complaint. Kimberly Hively claimed she was denied full-time work and promotions by the college simply because she is a lesbian. She lost the case because according to the Court, Title VII does not cover employment discrimination because of sexual orientation.

According to the reasoning of the Seventh Circuit in Hively, it perhaps may be somewhat easier to protect transgender individuals from employment discrimination than to protect lesbians and gays under Title VII, since in the case of transgender individuals, the discrimination is actually against the gender, whereas in the case of homosexuals, the discrimination is against the "choice" of partners. In other words, in one case you're dealing with actual biology; in the other you're dealing with desire and behavior. 

Though the distinction may seem absurd, it seems to feature in a number of lawsuit decisions. Even more peculiar, the law, as it has been interpreted, appears to be more protective of "effeminate" men who may or may not be gay, and "butch" women who may or may not be lesbian, than those who, outside of their sexual behavior, act more like "typical" men or women.

If you are LGTB and end up in Federal Court, a great deal of controversy appears to revolve around the legal meaning of the word "sex." Being discriminated against in the workplace on the basis of whether you are male or female is covered by Title VII of the Civil Rights Act of 1964. This legislation disallows any form of employment discrimination -- from hiring to harassment to lack of promotion -- based on your gender. What has been disputed by Federal Courts, however, whether the term "sex" extends to sexual orientation and gender identity.  The Supreme Court has ruled that employers can't treat their employees differently simply because they don't conform to stereotypical notions of dress or behavior of a particular sex and it prohibits same-sex harassment. Nonetheless, Title VII has not been amended to clearly identify that an individual is protected from discrimination because of sexual preference or sexual identification. 

As stated in the July 28, 2016 decision by the United States Court of Appeals for the Seventh Circuit, Kimberly Hively v. Ivy Tech Community College, July 28, 2016, the facts were as follows:

Hively began teaching as a part-time adjunct professor at
Ivy Tech Community College in 2000. On December 13,
2013, she filed a bare bones pro se charge with the Equal
Employment Opportunity Commission (EEOC) claiming
that she had been “discriminated against on the basis of sexual
orientation” as she had been “blocked from full-time employment
without just cause,” in violation of Title VII. After exhausting
the procedural requirements in the EEOC, she filed a complaint,
in the district court alleging that although
she had the necessary qualifications for full-time employment
and had never received a negative evaluation, the
college refused even to interview her for any of the six fulltime
positions for which she applied between 2009 and 2014,
and her part-time employment contract was not renewed in
July 2014. She alleged that she had been denied
full time employment and promotions based on her sexual orientation
in violation of Title VII, 42 U.S.C. 2000 §§ et seq.

The employer Ivy Tech argued in its defense in both the District Court and on appeal was that Title VII does not apply to claims of sexual orientation discrimination and therefore Hively has made a claim for which there is no legal remedy. The District Court agreed and granted the employer’s motion to dismiss. The Seventh Circuit upheld the lower court’s decision and did not follow the EEOC interpretation of Title VII to include sexual orientation. Instead it differentiated between claims of gender nonconformity from the sexual orientation claims. It stated, “Because we recognize that Title VII in its current iteration does not recognize any claims for sexual orientation discrimination, this court must continue to extricate the gender nonconformity
claims from the sexual orientation claims.”

In response to Hively ruling, the above referenced leading members of Congress have filed an amici curiae brief  in the case, urging the Seventh Circuit Court of Appeals to recognize existing non-discrimination protections for LGBT Americans under Title VII of the Civil Rights Act.

Although to date, Congress has repeatedly rejected legislation that would extend Title VII protection to claims of sexual orientation discrimination, an employee may raise a claim of gender discrimination if he can prove that a harasser was acting to punish the employee for behaving contrary to gender stereotypes.  The 3d U.S. Circuit,  in Prowel v. Wise Business Forms, Inc., 3d Cir., No. 07-3997, August 28, 2009,  allowed the claim of an “effeminate man” to move forward to a jury trial, on the basis that he presented evidence that his co-workers harassed him because of his acting contrary to typical male-associated stereotypes. 

Fortunately for New Jersey employees, LGBT employees are specifically protected from discrimination under the New Jersey Law Against Discrimination, and they do not have to pursue claims under Title VII. With all the strides the LGBT community has made in recent years, the language of Title VII still hasn't caught up to clearly supporting their rights.  Until Title VII is amended to specifically protect LGBT individuals from employment discrimination, the situation remains muddled. For this reason alone, it is essential to have a knowledgeable employment attorney at your side when fighting for your rights in the workplace.

What You Can Do

If you feel your employer is discriminating against you because of your sex or gender, gender identity, or sexual orientation, it is important to consult with an aggressive and experienced employment attorney. If you complained about such discrimination, and your employer then retaliated against you, you may also have a claim for retaliation. If you believe you are being subjected to such unlawful workplace discrimination or retaliation, please contact Hope A. Lang, Attorney at Law today for a free consultation.

Hope A. Lang, Attorney at Law serves clients throughout New Jersey, including Bergen, Middlesex, Essex, Hudson, Monmouth, Ocean, Union, Camden, Passaic, and Morris Counties with locations in Central, Western and Northern NJ to meet with clients.


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