In a sexual orientation case involving an adjunct professor who claimed she was denied “full time employment and promotions based on sexual orientation,” the 7th Circuit ruled unanimously that her employer can, indeed, do exactly that. In particular, Title VII, under which the case was brought, does not apply to sexual discrimination in the workplace.
The reason the Court got this one right has little to do with discrimination—and everything to do with it—rather, it’s centered on what the law actually says, and what the judges said about what the law actually says.
…a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act. For although federal law now guarantees anyone the right to marry an ‐ other person of the same gender, Title VII, to the extent it does not reach sexual orientation discrimination, also allows employers to fire that employee for doing so. … Many citizens would be surprised to learn that under federal law any private employer can summon an employee into his office and state, “You are a hard‐working employee and have added much value to my company, but I am firing you because you are gay.” And the employee would have no recourse whatsoever—unless she happens to live in a state or locality with an anti‐discrimination statute that includes sexual orientation.
Because the law, Title VII as it’s written, doesn’t address that question.
There’s more [emphasis added]:
…the distinction between gender nonconformity claims and sexual orientation claims has created an odd state of affairs in the law in which Title VII protects gay, lesbian, and bisexual people, but frequently only to the extent that those plaintiffs meet society’s stereotypical norms about how gay men or lesbian women look or act…. By contrast, lesbian, gay or bisexual people who otherwise conform to gender stereotyped norms in dress and mannerisms mostly lose their claims for sex discrimination under Title VII, although why this should be true is not entirely clear.
Yet, this [emphasis added]:
[T]he paradox is not our concern. Our task is to interpret Title VII as drafted by Congress, and as we concluded in Ulane, Title VII prohibits discrimination only on the basis of gender.
Regardless of what we might think of the particular ruling—concerning a woman who was denied advancement on the basis of her sexual orientation (assuming, arguendo, that her claim was accurate)—or of other rulings involving actual firings over sexual orientation, this court got this ruling right. The court is right because it applied the law as it was written, and not as it might have preferred it to have been written or as a government agency (EEOC had sided with the professor) wanted it to have been written.
The court also was right because it didn’t stop there. The court went on to point out that while the law in question, as it was written, conflicted with other laws—one driving the Supreme Court’s ruling on gay marriages, for instance—the court was powerless to resolve the conflict. Such a resolution is a political decision, not a judicial one; it’s for the people and their elected representatives to alter the law(s) in directions they see fit; no court can do that.
The court’s ruling can be read here.
