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Press Release

Employment

NCLR Responds to Seventh Circuit Decision Rejecting Sex Discrimination Claim by Lesbian Worker

(San Francisco, CA, July 29, 2016)—Yesterday, a panel of the Seventh Circuit Court of Appeals held that it was bound by its own prior decisions to deny a woman’s claim that her employer, Ivy Tech Community College in South Bend, Indiana, violated Title 7, a federal law barring sex discrimination in employment, when it repeatedly refused to promote or hire her full time because of her sexual orientation. The plaintiff in the case, Kimberly Hively, was represented by Lambda Legal.

Statement by National Center for Lesbian Rights Legal Director Shannon Minter:

“The Seventh Circuit’s decision yesterday is baffling, since the court recognizes there is no principled way to carve out sexual orientation claims from other types of sex discrimination claims—and that doing so leads to unfair and irrational results. The court recognized that sexual orientation discrimination is based on gender stereotypes and that its prior precedents, excluding such claims from protection under Title 7, have left lower courts with no clear guidance and led to inconsistent and arbitrary results. The court also acknowledged that excluding sexual orientation claims creates a direct conflict with the court’s race discrimination precedents, which recognize that discrimination against someone for being in a relationship with a person of a particular race is prohibited race discrimination under Title 7. Finally, the court applauded the reasoning of the EEOC in its recent decision holding that Title 7 prohibits discrimination based on sexual orientation against federal employees.

And yet, inexplicably, after explaining in such detail why its prior precedents are wrong, the court declines to overrule them, calling upon the U.S. Supreme Court or Congress to intervene.

The result is simply to prolong the current unstable and unfortunate state of affairs where lower courts are left with no principled guidance about how to rule on sex discrimination claims by lesbian, gay, or bisexual plaintiffs. It makes no sense to recognize that prior precedents are wrong and yet to refuse to reconsider them. Such a ruling damages the credibility of courts and diminishes respect for the law.

This is not a tenable situation. The net effect of the decision is likely to be to encourage other courts to hold, as the Seventh Circuit should have done, that discrimination based on sexual orientation is sex discrimination.”

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