U.S. appeals court to hear gay workplace discrimination case

November 29, 2016 3:23 PM EST

Demonstrators wave rainbow flags in the Castro district of San Francisco, California, U.S. following the election of Donald Trump as the president of the United States November 9, 2016. REUTERS/Stephen Lam


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By Daniel Wiessner

(Reuters) - A U.S. appeals court takes up a closely watched gay rights case on Wednesday in which an Indiana college professor who says she lost her job because she is a lesbian is arguing that federal civil rights law should protect gay people from workplace discrimination.

The full 7th U.S. Circuit Court of Appeals in Chicago will hear Kimberly Hively's appeal of a July decision by three of its judges who threw out her discrimination case against Ivy Tech Community College in South Bend, Indiana.

In order to rule in Hively's favor, the appeals court would have to buck decades of rulings that gay people are not protected by a milestone 1964 U.S. civil rights law.

Hively 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. The school has denied the claims.

"If I had been a man attracted to women, I truly believe I would have been offered a full-time position and given promotions," Hively said.

Hively, along with plaintiffs in at least three other cases pending in U.S. appeals courts, says discrimination on the basis of sexual orientation is a form of unlawful gender bias under Title VII of the Civil Rights Act of 1964. The law prohibits employment discrimination on the basis of sex, race, national origin and religion.

In July's ruling by the three-judge panel, Circuit Judge Ilana Rovner said it was difficult to justify denying employment protections to gay people after the U.S. Supreme Court's 2015 decision striking down state bans on gay marriage.

"From an employee's perspective, the right to marriage might not feel like a real right if she can be fired for exercising it," the judge wrote.

But the court, Rovner said, was bound by a "confused hodge-podge" of decisions dating back to the 1980s in which the 7th Circuit, a regional appeals court that covers Illinois, Indiana and Wisconsin, dismissed discrimination claims by gay workers.

The full court, however, can reverse those prior decisions.

So far, every U.S. appeals court to consider the issue has ruled that Title VII does not protect gay workers. But as public opinion on gay rights has shifted, and after the Supreme Court ruling on same-sex marriage, judges have become more receptive to revisiting the law, said Hively's lawyer, Greg Nevins of gay, lesbian, bisexual and transgender rights group Lambda Legal.

Lawyers for Ivy Tech did not respond to a request for comment.

While federal law does not explicitly bar workplace discrimination against gay people, 22 of the 50 U.S. states prohibit employment discrimination based on sexual orientation. Efforts to pass a federal law protecting gay people from job discrimination have come up empty in the U.S. Congress, spurring rights groups to turn to the courts.

The Obama administration has sided with Hively and submitted court briefs on her behalf. On Wednesday, a lawyer from the U.S. Equal Employment Opportunity Commission will join Nevins in arguing Hively's case.

The case is Hively v. Ivy Tech Community College, 7th U.S. Circuit Court of Appeals No. 15-1720.

(Reporting by Daniel Wiessner in Albany, New York; Editing by Alexia Garamfalvi and Will Dunham)



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