Fatima Hussein

IndyStar

Last June, same-sex couples were granted the right to marry. Soon, lesbian, gay, bisexual and transgender people may be formally protected from discrimination in the workplace.

The question for the 7th Circuit Court of Appeals in Chicago on Wednesday was whether Title VII of the 1964 Civil Rights Act extends to sexual orientation.

The court heard oral arguments from former Ivy Tech Community College adjunct professor Kimberly Hively's legal defense team from Lambda Legal, the Equal Employment Opportunity Commission and legal representatives from the college.

Hively, from South Bend, sued Ivy Tech in 2014, saying it passed her over for a permanent position and refused to renew her contract as an adjunct professor after school administrators learned she is a lesbian.

Ivy Tech has consistently denied that Hively was denied promotion because of her sexual orientation.

Wednesday morning, judges posed questions to both parties. Addressing Ivy Tech's defense attorney John Maley of Barnes & Thornburg, Chief Judge Diane Wood noted: "It is a little odd — you (Ivy Tech) said we deplore sexual orientation discrimination, but we're going to do it anyway." Maley rejected the notion.

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One judge questioned Hively's lawyer: "Are we placing too much power in the judiciary to amend the word 'sex' to include sexual orientation when we know this was not the initial intent of Congress? Congress has no affinity for altering the definition of sex."

Congress regularly considers whether to pass the Employment Non-Discrimination Act, a federal statute that would ban employment discrimination on the basis of sexual orientation. So far, the legislation has not yet been enacted.

"What we have is an incoherent framework. It's inconsistent," said Greg Nevins, counsel and Workplace Fairness Program Director for Lamba Legal, addressing the court.

The 7th Circuit Court of Appeals vacated a ruling by three of its own judges in July that the landmark workplace-discrimination law doesn't cover sexual-orientation bias. The three-judge panel did criticize the lack of sexual-orientation workplace protections, but said they must come from Congress or the U.S. Supreme Court.

The 11-judge panel on Wednesday repeatedly compared the case at hand to the landmark Supreme Court case 1967 case Loving v. Virginia, which invalidated laws prohibiting interracial marriage.

After oral arguments, Nevins said he was pleased with the tone of the questions.

"They clearly took our argument seriously," he told the IndyStar. "It was an engaged court; their questions were sharp and we are happy with the questions the court asked."

Ivy Tech's school spokesman Jeff Fanter told the IndyStar, "Ivy Tech Community College rejects discrimination of all types, and in fact explicitly prohibits, employment discrimination based upon a person's sexual orientation. In 2014, Kimberly Hively alleged that she was not promoted due to her sexual orientation. Ivy Tech takes such a claim very seriously and steadfastly denies Hively's allegations."

Last July, the Equal Employment Opportunity Commission (EEOC) affirmed that employment discrimination based on sexual orientation is prohibited under Title VII of the Civil Rights Act of 1964.

The federal law, which prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion, does not expressly provide protection for LGBT workers.

But on July 15, the EEOC ruled that discrimination based on sexual orientation is intrinsically or per se sex discrimination. “We … conclude that allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex,” the commission ruled.

But whether courts will agree with that interpretation remains to be seen. There is no set date for the full 7th Circuit Court of Appeals to issue its decision.

Call IndyStar reporter Fatima Hussein at (317) 444-6209. Follow her on Twitter: @fatimathefatima.

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