A federal appeals court ruled for the first time Tuesday that the 1964 Civil Rights Act protects LGBT employees from workplace discrimination, setting up a likely battle before the Supreme Court as gay rights advocates push to broaden the scope of the 53-year-old law.
The decision by the full 7th U.S. Circuit Court of Appeals in Chicago comes just three weeks after a three-judge panel in Atlanta ruled the opposite, saying employers aren't prohibited from discriminating against employees based on sexual orientation.
It also comes as President Donald Trump's administration has begun setting its own policies on LGBT rights. Late in January, the White House declared Trump would enforce an Obama administration order barring companies that do federal work from workplace discrimination on the basis of sexual identity. But in February, it revoked guidance on transgender students' use of public school bathrooms, deferring to states.
The case stems from a lawsuit by Indiana teacher Kimberly Hively alleging that the Ivy Tech Community College in South Bend didn't hire her full time because she is a lesbian.
Hively said she agreed to bring the case because she felt she was being "bullied."
She told The Associated Press in a telephone interview that the time has come "to stop punishing people for being gay, being lesbian, being transgender."
The Chicago ruling followed a so-called en banc hearing of all the judges in the appeals court, with eight agreeing that the civil rights law prohibits discrimination because of sexual orientation, and three dissenting. The vote is notable because the 7th Circuit is considered a relatively conservative appeals court. Eight out of the 11 judges were appointed by Republican presidents.
"This decision is 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, Employment Fairness Program Director for Lambda Legal, which brought the case on behalf of Hively.
The issue could still land before the Supreme Court at some point. A GOP-majority House and Senate make it unlikely the Congress will amend the Civil Rights Act, which outlaws discrimination on the basis of race, color, religion, sex, or national origin and requires equal access to public places and employment.
A dissenting opinion, Judge Diane Sykes said the desire to extend the protections to lesbians and gays is understandable, but doing so exceeded the court's boundaries. She added that "legislative change is arduous," but that judges aren't authorized to amend laws. She said that job belongs to Congress.
In a separate opinion concurring with the majority ruling, Judge Richard Posner says changing norms called for Tuesday's change in interpretation of the Civil Rights Act to find it covered LGBT workers.
The debate in the Hively case revolved around the meaning of the word 'sex' in Title VII of the Civil Rights Act. Some courts have concluded that Congress meant for the word to refer only to whether a worker was male or female. They said that it would be wrong to stretch the meaning of 'sex' in the statute to also include sexual orientation.
The lawyer representing the teacher, Gregory Nevins of the Lambda Legal advocacy group of LGBT rights, pointed to what he described as the absurdity of a 1980s Supreme Court finding that if workers are discriminated against because they don't behave around the office by norms of how men or women should behave, then that does violate the Civil Rights Law. But if a man or woman is discriminated against at work for being gay that was found not to violate the Civil Rights Act.
"You can't discriminate against a woman because she rides a Harley, had Bears tickets or has tattoos," he said. "But you can if she's lesbian."