you better work

These two civil rights cases are sparking the next battle for LGBTQ rights

AP

In the summer of 2012, Jameka Evans started work as a security guard at Georgia Regional Hospital. At work, Evans wore a men’s uniform and her hair short. She didn’t openly discuss her love life, but she is a lesbian. Not long after she began work at the hospital, she says, her boss and a human resources manager began targeting her for verbal and physical harassment “for failing to carry herself in a “traditional woman[ly] manner.” Eventually, she says, she was given fewer and fewer shifts until she was forced to resign–just over a year after she had started the job.

After months in court, a federal court last week handed down a defeat in an employment discrimination case Evans filed against the hospital. They said that although she was targeted because of her sexual orientation and gender non-conformity, she is not protected under Title VII civil rights law.

“I was a good employee, always professional and respectful of my peers but because I was a lesbian and didn’t look and carry myself like the other women, my supervisor zeroed in on me and harassed and punished me,” said Evans in a statement to Fusion. A spokesperson for the hospital told Fusion they can’t comment on legal matters.

In the weeks leading up to the decision, Evans’ case was held up as one of two landmark cases that could change the course of LGBTQ employment discrimination—an issue that increasingly has gained prominence after the Supreme Court upheld same-sex marriage rights in 2015. That step forward has has made other types of discrimination against LGBTQ people even more glaring.

Jameka EvansLambda Legal

Jameka Evans

Last week, the battle against employment discrimination was dealt a blow with the Evans decision. But the outcome of another case in Indiana is expected any day now, and could have an even wider impact on how employment discrimination is dealt with.

Both cases have hinged on the question of whether Title VII of the Civil Rights Act protects people from discrimination on the basis of their sexual orientation or gender identity when they’re interviewing for a job or working for a company.

When the Eleventh Circuit Court of Appeals decided 2-1 against Evans’ claim, they referenced previous court decisions against including sexual orientation in Title VII protections and said those rulings set a precedent which stands unless a full panel federal appeals court or the Supreme Court say otherwise. They said her claim that she was discriminated against because of her gender identity could be considered the same as her claim over her sexual orientation.

Title VII of the Civil Rights Act says that employment discrimination on the basis of sex is illegal. Whether that includes sexual orientation and gender identity is a debate that has not yet been entirely clarified.

“This is not the end of the road for us and certainly not for Jameka,” Greg Nevins, Evans’ attorney and Employment Fairness Project Director for Lambda Legal, said in a statement. “There is no way to draw a line between sexual orientation discrimination and discrimination based on gender nonconformity because not being straight is gender-nonconforming, period.”

“[There is a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.”

Jon Davidson, Lambda Legal’s legal director, said on a call with reporters that what lawyers are hoping for is a federal-level judgment that makes Title VII’s reach explicit.

“We’ve been trying to get express and explicit coverage in federal statutes for decades and we’ve not been able to get that through congress yet,” Davidson said. “But there are these laws that bar discrimination based on sex.”

The Indiana case, Hively v. Ivy Tech Community College, could provide just that kind of definitive decision. The full panel of judges of the Seventh Circuit Court of Appeals is considering whether sexual orientation is included under Title VII. The difference between Hively’s case and Evans’ case is that this full panel of the appeals court has the power to decide that previous decisions against LGBTQ plaintiffs were flawed: Rather than just following precedent, they have the power to set it.

Like Evans, Kim Hively, a math teacher in South Bend, Indiana, alleged that her employer discriminated against her and forced her out of her job after finding out that she was a lesbian. She had worked at the college for 14 years without incident until one day, according to Hively, she received a phone call from the school chancellor’s assistant “reminding [her] of [her] professionalism” after someone saw her kissing her girlfriend goodbye in her car.

“I wasn’t really sure what to say exactly. I was completely shocked,” she said. Soon after, “They just abruptly stopped putting me on the schedule.”

Kimberly HivelyLambda Legal

Kimberly Hively

The college denies any wrongdoing. “Ivy Tech rejects discrimination of all types, sexual orientation discrimination is specifically barred by our policies, and the college did not engage in such discrimination in this case,” a spokesperson said in a statement. “If sexual orientation discrimination were found to be prohibited by existing law, we are well prepared to defend this case on the merits as Kimberly Hively experienced no such discrimination at Ivy Tech.”

A smaller panel of the same court ruled against Hively in July last year, but in their decision acknowledged that the ruling presented a problem in an environment where LGBTQ rights have been affirmed by SCOTUS and other courts recently. That may have been why the full panel of judges agreed to hear this higher appeal.

The judges wrote in their decision that right now in the U.S. there is “a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.”

With the anti-LGBTQ influences inside the Trump administration, the need for LGBTQ rights to be affirmed and defended has become even more urgent. It’s clear that federal legislation can’t be relied on to protect LGBTQ people from discrimination.

On state level, laws that cover sexual orientation and gender identity-based employment discrimination are inconsistent. In 28 states, there is no law protecting LGBTQ people from employment discrimination, while 20 states have laws that protect people on the basis of sexual orientation and gender identity. The laws can even vary depending on what city you’re in. Since South Bend has anti-discrimination laws, Hively would have been protected if she worked for a private company in the city. But because Ivy Tech is subject to state laws, no such protections existed.

“All I really hope is that nobody loses their job because of who they choose to spend time with after they leave their job,” said Hively. “It doesn’t affect my job, and it never affect my job, and I did good work.”