An appellate court's acceptance of the idea that Title VII anti-discrimination ruleswhich give federal protections against gender-bias in the workplacealso apply to cases of anti-LGBT discrimination would be a "remarkable sea-change in the law as we know it," said Greg Nevins of Lambda Legal in a Feb. 28 conference call.
The legal advocacy group is waiting to hear the decisions on two cases that may result in such a determination; one of those is an Indiana-based lawsuit, Hively v. Ivy Tech Community College, wherein a lesbian instructor alleges that she was not promoted in her position because of her sexuality. Lambda Legal officials discussed the casesthe other is Evans v. Georgia Regional Hospitalin the call.
Lambda attorneys are saying that courts should apply the same standard to anti-LGBT employment discrimination that is employed in most cases of employment gender-bias: Would the victim receive the same treatment were they of the opposite sex? Federal Equal Employment Opportunity Commission officials have applied such a standard in recent cases, for example.
"We have yet to have a federal court of appeals advance that idea," said Jon Davidson, Lambda's legal director. He called the matter "one of the hottest issues" in employment-related litigation, further noting that the court's findings can be extrapolated into other realms, such as Title IX education rules or public-accommodations laws. While the Obama Administration interpreted the Title IX laws to provide protections for trans students, for example, the Trump Administration did not. A court victory can set a legal precedent, cementing an interpretation into law where it cannot be easily reversed.
No matter how an appeals court weighs in on Hively or Evans, added Nevins, who is Lambda's workplace fairness strategist, "The Supreme Court will likely be interested."
He said that the courts are perhaps the most valuable setting for advocates to determine the merits of a law or protection, since, unlike the legislative or executive branches, courts are obligated to explain their decisions' reasoning.
"The courts have been a place where we have to make arguments and judges have to lay out a reason," he explained. "We get to demand an answer."