Chicago Federal Center and the Dirksen Federal Building, which houses the 7th Circuit Court of Appeals – Photo: Teemu008, via Wikimedia.

On Friday, the 7th U.S. Circuit Court of Appeals affirmed a lower court judgment dismissing a lesbian’s employment discrimination lawsuit. The decision dealt a blow to LGBT advocates who had hoped the court would find Title VII’s prohibitions on sex discrimination cover individuals who are discriminated against because of their sexual orientation.

Kimberly Hively sued her former employer, Ivy Tech Community College, of South Bend, Ind., where she began working as a part-time adjunct professor in 2000. In 2013, Hively filed a complaint with the Equal Employment Opportunity Commission (EEOC) claiming that she had been denied a full-time position and a promotion, in violation of Title VII.

She later filed a lawsuit in the U.S. District Court for the Northern District of Indiana, alleging that, although she possessed the necessary qualifications, the college refused to interview her for any of six full-time positions for which she applied between 2009 and 2014, and chose not to renew her part-time contract, because of her sexual orientation.

The district court dismissed Hively’s lawsuit, finding that Title VII does not apply to claims of sexual orientation discrimination. She appealed that decision.

But the Seventh Circuit agreed with the district court, using two prior cases —Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc. and Spearman v. Ford Motor Co. — as precedent for its conclusion. Instead, the appeals court said, it is up to Congress to change the law to include protections for sexual orientation. Currently, LGBT advocates are urging Congress to pass the Equality Act, which would amend the Civil Rights Act — including Title VII — to prohibit discrimination based on sexual orientation or gender identity.

“This panel could make short shrift of its task and affirm the district court opinion by referencing two cases (released two months apart), in which this court held that Title VII offers no protection from nor remedies for sexual orientation discrimination,” Judge Ilana Rovner said, writing for the court. “Both Hamner and Spearman relied upon our 1984 holding in Ulane v. Eastern Airlines, Inc., in which this court, while considering the Title VII claim of a transsexual airline pilot, stated in dicta that ‘homosexuals and transvestites do not enjoy Title VII protection.’ … Since Hamner and Spearman, our circuit has, without exception, relied on those precedents to hold that the Title VII prohibition on discrimination based on ‘sex’ extends only to discrimination based on a person’s gender, and not that aimed at a person’s sexual orientation.”

The court said that it was bound by precedent “unless and until” it is overruled by the Supreme Court or federal lawmakers amend the law to include sexual orientation as a protected class. But it also noted that the EEOC has previously determined that sexual orientation discrimination does constitute sex discrimination, and that other circuits may begin to rule in ways that are inconsistent with Seventh Circuit precedent.

“Based on our holding today, which is counter to the EEOC’s holding in Baldwin, we need not delve into a discussion of the level of deference we owe to the EEOC’s rulings,” Rovner wrote. “Although we affirm our prior precedents on this point, we do so acknowledging that other federal courts are taking heed of the reasoning behind the EEOC decision in Baldwin.”

Lambda Legal, which represented Hively, issued a statement calling the court’s opinion “the wrong outcome,” while also recognizing the judges’ hands were tied by prior precedent.

“The writing is on the wall, the precedents the Court felt bound by need to be reconsidered and we need Congress to pass the Equality Act,” said Greg Nevins, counsel and employment fairness strategist for Lambda Legal.

The Human Rights Campaign also decried the decision, pointing to its finding as evidence of the need for congressional action to correct the law.

“We are deeply disappointed in the 7th Circuit Court’s decision failing to join the growing consensus that existing civil rights law must reasonably be interpreted to include non-discrimination protections based on sexual orientation,” Sarah Warbelow, HRC’s legal director, said in a statement. “While the court made its decision based on what it viewed as precedent, it did make clear however that there is no coherent basis for excluding sexual orientation from other types of sex discrimination claims.

“The court’s decision makes the need even more urgent for Congress to pass the Equality Act,” Warbelow concluded, “making explicitly and permanently clear that LGBTQ people are protected under our nation’s civil rights laws.”

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John Riley is the local news reporter for Metro Weekly. He can be reached at [email protected]