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Same-sex Workplace Discrimination Moves to Appeals Courts

Advocates for gay and lesbian legal rights are hoping the federal courts will put forth a national ban on job discrimination.

Advocates for gay and lesbian legal rights are hoping to achieve in the federal courts what they have so far been unable to get in Congress — a nationwide ban on job discrimination.

Federal law forbids workplace discrimination on the basis of race, color, religion, sex, or national origin, but it does not explicitly apply to sexual orientation.

In two cases now before the federal courts, gay rights advocates argue that it should. They are hoping that the Supreme Court's same-sex marriage decision is changing the way judges interpret civil rights law.

The 7th Circuit Court of Appeals in Chicago on Wednesday heard the case of a part-time professor who claimed she was denied a full-time post because she is a lesbian. In mid-December the 11th Circuit Court of Appeals in Atlanta takes up the case of a woman who said she was forced out of a hospital job because she is a self-described "gay female."

In the past, every federal appeals court to consider whether gay employees are entitled to non-discrimination protection has ruled that they are not, though the Equal Employment Opportunity Commission recently said they are protected.

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Wednesday's argument involved a lawsuit filed by Kimberly Hively. She said Ivy Tech Community College in South Bend, Indiana never even interviewed her for full-time position because she is a lesbian.

Her lawyer, Greg Nevins of Lambda Legal, argued that she was the victim of illegal sex discrimination.

"Her employer took adverse job actions against her because she is a woman who is attracted to women, that it would not have taken if she had been a man who is attracted to women."

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A majority of the judges seemed inclined to rule in Hively's favor, in part because of a 1989 Supreme Court decision that said the definition of sex discrimination includes treating employees different because of stereotypes about how men and women should act differently.

In the case to be argued in December, Jameka Evans claims she was targeted for termination because she didn't "carry herself in a traditional woman manner" in her job as a hospital security officer.

While Congress has repeatedly rejected a federal non-discrimination law for gays and lesbians, 22 states have laws prohibiting workplace discrimination based on sexual orientation.