“Who will be Hurt?” 7th Circuit Signals Reversal on Sexual Orientation Discrimination 15:36, December 28, 2016

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“Who will be Hurt?” 7th Circuit Signals Reversal on Sexual Orientation Discrimination

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During a rare rehearing of the sexual orientation discrimination case Hively v. Ivy Tech Community College before a full-court panel of the Seventh Circuit Court of Appeals, Judge Posner reportedly asked the lawyer defending a college’s decision to deny full-time employment to a lesbian employee: “Who will be hurt if gays and lesbians have a little more job protection?” When the attorney couldn’t think of anyone, Posner retorted, “So, what’s the big deal?” according to an Associated Press (AP) report covering the oral argument on November 30, 2016.

The AP reports that at oral argument, Posner and others among the 11-judge panel compared laws that fail to protect against sexual orientation bias to overturned laws against interracial marriage. The report also quotes the employee’s lawyer, Gregory Nevins, as pointing out the absurdity of sex stereotyping laws that prohibit discrimination “against a woman because she rides a Harley, had Bears tickets or has tattoos,” but not against a woman who is a lesbian.

Even as the Seventh Circuit Court rethinks its prior ruling that sexual orientation is not covered by Title VII and signals a potential reversal of that opinion, it’s also possible that the Second Circuit Court of Appeals could, if persuaded by 128 members of Congress (among others), reverse precedent and rule to protect sexual orientation in the workplace.

If one or both of these Circuit Courts expands LGBT workplace protections, they will be joining a growing number of federal courts that have made similar rulings. Sooner or later, a Supreme Court ruling will probably be required to settle a split among the Circuit Courts in interpreting the scope of Title VII’s protections. If this happens post-inauguration, as is likely, the AP report states that the “[c]hances of a majority of justices agreeing that workplace protections should include LGBT workers will be slimmer if President-elect Donald Trump fills a high court vacancy with a social conservative.”

Compliance Can’t Hurt

Uncertainty is a common theme in compliance, which must properly weigh risks — whether the risks include employee misconduct or shifts in the legal landscape. One risk that’s easy to overlook is the risk of doing nothing when the law (or its application to a particular workplace situation) leaves room for ambiguity.

One solution is to be proactive with risks. Waiting on the federal authorities to determine the level of protection or enforcement for sexual orientation discrimination does nothing to thwart the real harm of bias in the workplace. Being proactive with risks includes not just dealing with bias when it occurs, but also creating the conditions that make it less likely to occur, such as by focusing on creating happy, healthier, motivating, and appreciative workplaces (which, incidentally, tend to be more productive).

Another solution is to implement and maintain effective compliance programs that involve employees at all levels in becoming part of the solution. And fostering critical and experiential thinking skills when supervisors and employees are confronted by gray areas is exactly what can be achieved by such programs, including thoughtfully structured and well-researched diversity training to address bias against all disenfranchised groups

So, to paraphrase Judge Posner’s question to the lawyer who argued against interpreting Title VII to include sexual orientation bias (and, presumably, to make the lawsuit against his client go away), who will be hurt by being proactive in providing and maintaining workplace protections against sexual orientation discrimination? Answer: no one. The real hurt can happen if effective bias prevention programs are scaled back because someone failed to consider the risks of doing too little, at which time it will be too late.

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Steve Treagus
Stephen Treagus, JD's, previous practice as an attorney specializing in employment litigation exposed him to the rough-and-tumble world of employment relationships gone awry. Today, this experience informs his articles and courses, helping employers avoid costly litigation and get employment law right. Stephen earned his JD from John F. Kennedy University School of Law and his BA from Sonoma State University.

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