For the first time in U.S. history, a federal court has ruled that LGBTQ employees are protected from workplace discrimination under the 1964 Civil Rights Act.
In 2013, professor Kimberly Hively filed a lawsuit against an Indiana community college alleging that the school had repeatedly refused to hire her for a full-time position because she was openly lesbian. A district court dismissed her claims, saying that sexual orientation wasn’t a protected class under the Civil Rights Act.
But the Chicago-based 7th U.S. Circuit Court of Appeals reversed that decision Tuesday, ruling that because the Civil Rights Act explicitly outlines that an employee’s “sex” can’t be used to discriminate against her, employers also can’t discriminate on the basis of sexual orientation — even though, the court’s opinion acknowledges, “It is quite possible that these interpretations may also have surprised some who served in the  Congress.”
To make its case, the appeals court relied on a line of cases that found it was wrong to discriminate against someone for failing to conform to stereotypes about how men and women are supposed to act. As a homosexual woman living in a time and place where heterosexuality is seen as the norm, “Hively represents the ultimate case of failure to conform to the female stereotype,” the opinion reads. That means her employer could be punishing her for failing to be properly “female” — a claim that would fall squarely under the Civil Rights Act.
“Hively’s claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing,” it goes on. “The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man).”
Hively’s case was heard by the full circuit court in November. Eight of the court’s 11 judges were appointed by Republican presidents, according to the Chicago Tribune. The court did not rule on whether Hively was actually being discriminated against due to her sexual orientation, leaving that decision to a lower court.
The case could go all the way to the Supreme Court, but it’s unclear if the current Congress is interested in amending the Civil Rights Act to more clearly designate LGBTQ employees as safe from discrimination. In late January, the Trump administration announced it would continue enforcing an Obama-era order protecting federal LGBTQ employees from discrimination, but in February it rolled back Obama protections for transgender students’ bathroom use, leaving the matter up to individual states.