Title VII

Jeff Sessions Reverses Trans Workplace Protections, Corporate America Petitions

Under the current Trump administration, the rights and lives of transgender persons have been severely targeted. Even after challenging their ability to use restrooms that don’t identify with their birth genders and removing their “privilege” to fight for our country, it seems like the targeted attacks are only worsening.

Earlier this month, Attorney General Jeff Sessions received major, and rightfully deserved, backlash from the LGBTQ+ community and its supporters when he released a memo stating that the Justice Department would reverse a 2014 guidance issued by the Obama administration which interpreted Title VII (which prohibits discrimination in the workplace based on race, color, religion, sex, orientation, and national origin) of the Civil Rights Act of 1964 as also banning discrimination of transgender employees in the workplace. In other words, the federal civil rights legislation does not protect transgender individuals from discrimination in the workplace. 

“Title VII’s prohibition on sex discrimination encompasses discrimination between men and women, but does not encompass discrimination based on gender identity per se, including transgender status.” - Jeff Sessions

According to USA Today, Devin O’Malley, the Justice Department’s spokesman, agreed with Sessions on his remarks that the Obama administration abandoned the fundamental principle of law and this reversal is a matter specifically of law, and not of policy. Yet, he attempted to reassure that the department is devoted to protecting individuals’ civil and constitutional rights without disregarding the various laws initiated by Congress to specifically protect those against the presence discrimination based on sexual orientation.

“The attorney general joins President Trump and an administration who are stopping at nothing to strength institutional discrimination and walk back the hard-fought progress made by the LGBTQ community.”  - Sarah Kate Ellis, GLAAD President and CEO

Shortly thereafter, 76 companies, including some of the biggest names in corporate America (Starbucks, Apple, Ben & Jerry’s, Facebook, American Airlines, etc.), have teamed up with Lambda Legal - a nonprofit advocacy organization - to create a petition that urges the Supreme Court to end employment discrimination based on sexual orientation once and for all by creating a uniform set of federal protections for gay, lesbian, AND transgender employees. Even more importantly, the petition challenges the Supreme Court to settle the never-ending debate regarding the protection of LGBTQ+ workers - sooner rather than later - in the case of Evans v. Georgia Regional Hospital. Jameka Evans, a proud lesbian who presented herself in a masculine fashion, worked as a security guard at Georgia Regional Hospital in Savannah for approximately a year (2012-2013). While there, Evans admits to having been harassed because of her sexuality based on not only the treatment she received but the questions she was asked about her sexuality after filing an internal complaint with human resources regarding the gruesome treatment. Ultimately, Evans decided to quit her job when the harassment persisted. In April 2015, she filed a lawsuit in the U.S. District Court for the Southern District of Georgia against her former employer for violating Title VII, an action that was dismissed by the court, and her day in court has yet to come as that request was later denied by the Eleventh Circuit Court in March 2017.

Ironically, the Supreme Court has yet to decide if they will hear the case.

 To learn more about the Evans v. Georgia Regional Hospital case, click here.

A Federal Court of Appeals Rules in Favor of Job Protections for Gay Workers

Last week a federal court of appeals ruled the existing Title VII statute of the Civil Rights Act of 1964, which bans sexual discrimination in the workplace, includes discrimination based on sexual orientation – a huge employment victory for the LGBTQ+ community.

The 7th Circuit Court of Appeals in Chicago, which only covers federal lawsuits out of Indiana, Illinois, and Wisconsin, sat en bac last Tuesday to hear the case of Kimberly Hively v. Ivy Tech Community College of Indiana. (En bac means “full court” – when an appeals court sits en bac it can review and reverse its prior rulings.) Hively, who is openly lesbian, started teaching at Ivy Tech in 2000 as a part-time math teacher. She applied for six full-time positions between 2009 – 2014 and was denied every time, but to add insult to injury, her contract was not renewed in July 2014. Feeling certain that is was because of her sexual orientation, she filed a pro se (“on her own behalf”) charge with the Equal Employment Opportunity Commission in December 2013 and went on to file a lawsuit against Ivy Tech in district court. She represented herself because she said no lawyer thought she would win. Unfortunately, the district court granted the school's motion to drop the case based on a previous 7th Circuit Court decision (Hammer v. St. Vincent Hospital and Health Care Center, Inc., 2000) that stated sexual orientation is not a protected class under Title VII. Hively responded by filing an appeal against the court and the 7th Circuit agreed to hear the case.

The judges ruled with an 8-to-3 vote in favor of Hively. The ruling not only reversed the court’s past decisions on the matter but made the 7th Circuit Court the highest federal court to rule in favor for protection of sexual orientation-based discrimination under the existing Title VII.

“The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is

actually impossible to discriminate on the basis of sexual orientation without discriminating

on the basis of sex, persuades us that the time has come to overrule our previous

cases that have endeavored to find and observe that line.”

-       Chief Judge Diane Wood

Jeff Fanter, Senior VP for Communication and Marketing at Ivy Tech, has said the school “respects and appreciates” the ruling of the court and is not seeking to appeal its decision. The court, however, did not specifically rule on Hively’s case, but it did rule on its nature which allows her case to continue in a lower court after previously being dismissed. The college is ready to fight Hively’s claim of discrimination being the reason she was never promoted and her contract was not renewed, but as for now, like the Lambda Legal CEO, Rachel Tiven, said, “Love won again today.”

View the court’s official decision here