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By Bill Rankin

The question of whether employers may legally fire people because they are gay or lesbian is likely to return before the 11th U.S. Circuit Court of Appeals in Atlanta, now that an appeals court in Chicago has issued a landmark ruling in a similar case.
On Tuesday, the Seventh U.S. Circuit Court of Appeals in Chicago became the first appellate court in the country to rule that gays and lesbians are a “protected class” under Title VII of the Civil Rights Act. By an 8-3 vote, the full court ruled that discrimination on the basis of sexual orientation is a form of sex discrimination.

Last month, a three-judge panel of the 11th Circuit in Atlanta ruled the other way, saying federal law does not prohibit employers from discriminating against workers because they are lesbian or gay. The 2-1 ruling said the court was bound by a 38-year-old precedent that said an employee’s “discharge for homosexuality” from Gulf Oil Co. was not prohibited by federal law.

Moreover, the ruling held that Title VII specifically prohibits discrimination on the basis of race, sex, religion and national origin — but not sexual orientation.

On Friday, Jameka Evans, the plaintiff in the Georgia case, asked the entire 11th Circuit, which is allotted 12 judges, to reconsider the three-judge panel’s decision. The court currently has a vacancy, so an “en banc” hearing would be before 11 judges.

In her lawsuit, Evans claimed she was harassed and fired from her job as a security guard at Georgia Regional Hospital in Savannah because she’s a lesbian.

“I will shocked to the point of picking up my jaw if the full 11th Circuit didn’t hear the case,” said Anthony Kreis, a Chicago-Kent College of Law professor who has closely followed LGBT discrimination cases nationwide. “If the conditions aren’t ripe for a full court review now, they never will be.”

If Evans’ case is heard by the entire 11th Circuit court, which has jurisdiction over Georgia, Alabama and Florida, gays and lesbians will be one step closer to having workplace protections against discrimination here. This would be the same legal route as the one taken by the Seventh Circuit in Chicago, whose ruling on Tuesday overturned a decision by one of its own three-judge panels.

That outcome was a victory for Kim Hively, an Indiana math teacher who said she was fired by Ivy Tech Community College after being seen kissing her girlfriend in a car in the school parking lot.

In a statement, Ivy Tech spokesman Jeff Fanter said the college denies discriminating against Hively and rejects discrimination of all types.

Notably, Fanter added, Ivy Tech does not intend to appeal Tuesday’s ruling to the U.S. Supreme Court. This allows other appellate courts, like Atlanta’s, to continue to weigh in on the issue.

The Seventh Circuit ruling marked a long-sought milestone by the LGBT community.

“Hively’s claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction and policing,” Chief Judge Diane Wood wrote.

“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 added. “That means that it falls within Title VII’s prohibition against sex discrimination.”

Judge Richard Posner, in a concurring opinion, said discrimination against a woman because she’s a lesbian is analogous to a woman being discriminated against because she’s a woman.

“That woman didn’t choose to be a woman; the lesbian didn’t choose to be a lesbian,” he wrote. “I don’t see why firing a lesbian because she is in the subset of women who are lesbian should be thought any less a form of sex discrimination than firing a woman because she’s a woman.”

Posner acknowledged that his court was imposing a different meaning to sex discrimination than the one passed by Congress in 1964. Those legislators did not foresee the society’s changing attitudes toward the gay community or the sexual revolution of the 2000s, he said.

“We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963-1965), carrying out their wishes,” Posner said. “We are not. We are taking advantage of what the last half-century taught.”

Judge Diane Sykes, writing in dissent, called the ruling “momentous” — all the more reason to pay careful attention to the role of the judiciary.

Sexual orientation is not on the list of Title VII’s forbidden categories of discrimination, she wrote. A “striking cultural change” in attitudes toward the LGBT community “may eventually persuade the people’s representatives to amend the statute to implement a new public policy.”

As for the courts, she said, “We are not authorized to infuse the text with a new or unconventional meaning or to update it to respond to changed social, economic or political conditions.”

Lambda Legal, the LGBT civil rights group, is pressing the issue in courts across the nation, said one of its lawyers, Greg Nevins, who represents both the plaintiff in Indiana and the one in Georgia.

“Tuesday’s ruling by the Seventh Circuit was the first jewel in the crown,” Nevins said. “It’s a new day. Does the full 11th Circuit now need to revisit this issue? I think the answer is yes.”