Taking LGBT Workplace Discrimination to Federal Court

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November 29, 2016
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Gregory R. Nevins is Counsel and Employment Fairness Program Director at Lambda Legal. We asked him to explain how federal law protects LGBT people from workplace discrimination.

Lambda Legal: Why are LGBT people so vulnerable to discrimination in the workplace?

Gregory R. Nevins: Until now, the federal appellate courts have been reluctant to recognize that Title VII of the 1964 Civil Rights Act covers LGBT people. Title VII says that you cannot discriminate against somebody because of that person’s race, color, sex, religion or national origin.

LL: How does it protect LGBT people from workplace discrimination?

GN: Say, for instance, that when a man who comes to work and says, “I’m getting married to a wonderful woman, and I’m going need the next couple of weeks off,” people stand up and cheer, maybe there’s a cake, and they get the time off. But if a woman says that, there’s crickets, and eventually she’s eased out of the workplace. That’s sex discrimination: What was perfectly fine for a man to do is not fine for that woman to do, even though they’re doing the exact same thing. 

Gregory R. Nevins

LL: Why have some courts rejected this position?

GN: The courts generally haven’t even answered the question of “is the employer treating a man differently than it would a woman?” Instead, they say that “Congress hasn’t added sex orientation and gender identity into Title VII.” And my response to that is: As a judge you have to make decisions with the law you have, not the law you wish you had. The question before the courts is: “Does the law cover the discrimination that we are talking about here?”

LL: Why have we seen courts rule in favor of LGB people who do not conform to gender norms, but not rule in favor of LGB people who pass as straight?

GN: Because they look back at a Supreme Court case called Price Waterhouse v. Hopkins. In that case, Ann Hopkins was denied partnership at Price Waterhouse because she was viewed as aggressive and macho. The courts say the only kind of general nonconformity that’s actionable is what Ann Hopkins was — somebody who didn’t conform to feminine norms.

But that’s not what the Supreme Court said. The Court said that Title VII strikes at the entire spectrum of gender stereotypes. In the past, courts recognized gender stereotyping discrimination if an employer based its decisions on the idea that women won’t be serious workers if they have young children, that women can’t work long hours, or that they can’t work overnight. And the courts said that none of those stereotypes about women are allowed in the workplace; women get to make the choice whether they want to do those jobs or not. So the idea that gender stereotype discrimination is limited to your appearance and your demeanor is a complete falsehood.

Kimberly Hively

LL: Give us an overview of the Hively case.

GN: Kim Hively taught at Ivy Tech Community College in South Bend, Indiana, for years and years, and was continually denied promotions and eventually forced out, because she’s a lesbian. She filed a charge with the Equal Employment Opportunity Commission (EEOC), and brought a lawsuit in the Northern District of Indiana. The judge there did what the judge had to do. There was existing Seventh Circuit precedent, and he said he was sympathetic to the situation, but he had to dismiss the case.

That’s when Lambda Legal got involved. We filed an appeal. I argued the case before a three-judge panel of the Seventh Circuit on September 30, 2015. Ten months later, the decision came down from the panel, saying essentially, “We agree with you, but we ruled the other way 15 years ago, and we’re sticking with it.” The opinion was very thoughtful and talked about a lot of the ways in which the courts seem to have gotten it wrong. And that was a powerful impetus for us to ask the entire Court to rehear the case [known as a rehearing en banc].

The circuit courts are right underneath the Supreme Court. To say the circuit courts do not like to rehear a case en banc is an understatement. It’s like being struck by lightning. But this is a very compelling case. And on October 11, they granted a rehearing en banc, and I will be arguing that case before 11 judges in Chicago on November 30. It’s a really big chance. If they were to rule in our favor on this, it would be a big game changer.

LL: What is the sex discrimination claim that we’re making in the Hively case?

GN: There are three arguments. The first goes back over 40 years to a case where women with young children were fired from their jobs, while men with young children got to keep their jobs. The argument was: You can’t have a different hiring policy for men than you have for women. In other words, it wasn’t that all women were discriminated against; it was women who did X who were discriminated, whereas men who did X were not. So the argument here is that women who date women are discriminated against, whereas men who date women are not.

The other argument is a gender stereotyping argument that says that Kim Hively did not conform with the stereotype that women should date only men, and because of that, she was fired.

The third argument is the analogy to interracial relationships. Discrimination against people in same-sex relationships is not the same — culturally, socially, historically — as discrimination against people in interracial relationships. But Title VII treats the five categories — race, color, religion, sex and national origin — the same, and the Supreme Court has said so over and over again.

LL: What is next for Kim, if we win?

GN: If Kim wins, she should get her day in court, and she can go back and prove her case in court in Indiana. There is, of course, a possibility if we were to win, that Ivy Tech could appeal to the Supreme Court. If the Court declines to hear the case, Kim would go back to Indiana to prove her case. If they grant the appeal, then the issue’s before the Supreme Court, and we would have the big show there, and she would have to wait to see whether they agree with the Seventh Circuit and allow her a day in court.

Jameka Evans

LL: Give us an overview of the Evans case.

GN: Jameka Evans worked for Georgia Regional Hospital in Savannah, and she was forced out of her job. She brought a charge with the EEOC, and then filed a lawsuit on her own in the Federal District Court in Savannah. She raised the claims that she was discriminated against, both because she had a masculine appearance and demeanor, and because she’s a lesbian.

Lambda Legal joined the case at the district court as a friend of the court, and now we represent Jameka on appeal to the Eleventh Circuit. Oral argument is December 15. The EEOC is going to be by her side, as it is in the Hively case.

LL: What do you hope will happen at the Eleventh Circuit?

GN: First off, there’s really no question that Jameka should have her day in court on one of her claims, that she was discriminated against because of her nonconformity to gender stereotypes, insofar as she was perceived as having a masculine appearance and demeanor. But the Court appears to be very interested in the case, and the fact that they’ve scheduled argument makes me think that they will do the responsible thing and answer the question of whether or not all of this discrimination – whether based on being perceived as masculine or based on being a lesbian -- is covered by  Title VII. There needs to be clear guidance to the trial court as to how to manage this case going forward.

LL: Do you think that ultimately the Supreme Court will have to decide this issue?

GN: I would have probably given you a different answer a month ago than I would now. We’ve been conditioned as lawyers to tamp down enthusiasm over the possibility of the Supreme Court answering questions because, over the past several years, their docket has shrunk from almost 150 cases a year to 70. The Seventh Circuit grant of rehearing in Hively is something that’s even more rare than the Supreme Court granting review, believe it or not. This suggests that these are issues whose time has come. 

LL: In what other ways can we extend protections of LGBT people in the workplace?

GN: We’re trying to gets courts to realize that existing federal non-discrimination law covers sexual orientation discrimination and gender identity discrimination. That will be huge for employment, education and everywhere sex discrimination protections apply. But Title II of the Civil Rights Act does not cover sex discrimination protections in public accommodations.

Therefore, when people ask, “Should we be excited about a victory in the courts, or should we be supporting the Equality Act?” — that is a false choice. We want both things to happen. First of all, if you have two roads to victory, why would you only choose one? The Equality Act provides for protections for the LGBT community in many areas:  credit, jury service, housing and employment. But it’s also the only way we are going to get protections nationwide for discrimination in public accommodations. And that’s the key.

LL: Why is it important that LGBT people are able to go to work free from harassment and discrimination?

GN: The benefits to the LGBT community are obvious: being able to provide for themselves and their families and to do so free of discrimination. But it also benefits employers. It’s not a coincidence that so many employers are rallying to the defense of the LGBT community in the workplace, because they want good workers, they want happy workers, and they want workers prized for what they bring to the workforce and bring to the company. They don’t want the silliness and the nonsensical nature of discrimination to have a part in who gets ahead and who doesn’t, because that’s not good for them.

What President Obama did with the Federal Contracting Order, and what the Governor of Louisiana did, was to say: We are not going to enter into contracts with you if you’re going to discriminate on the basis of sexual orientation and gender identity, because when you do that, you’re not you’re not bringing to the table the best people for the job. We’re not getting the best and the brightest. We’re getting the best and the brightest straight people. We’re getting the best and the brightest cisgender people.

LL: What would be your message to employers?

GN: Get behind this. Tell the courts to not only rule in favor of protections, but do so now. Tell them that you would like to be able to say to middle management, to your employees, that discrimination is not only something that is against your company’s values, but that it’s illegal.