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Despite a 1998 landmark U.S. Supreme Court decision making same-sex discrimination in the workplace unlawful, the 7th U.S. Circuit Court of Appeals has ruled that homosexuals are not a “protected class” under Title VII of the Civil Rights Act of 1964 and that they generally cannot sue their employers for discrimination based solely on their “sexual orientation.” “There is a difference between one’s sex and one’s sexuality” under federal law, Judge Daniel A. Manion wrote for the unanimous three-judge panel in Hamner v. St. Vincent Hospital and Health Care Center Inc., No. 99-3086. In the Aug. 24 decision, Judge Manion wrote that Congress, in enacting Title VII, “intended the term �sex’ to mean �biological male or biological female,’ and not one’s . . . sexual orientation.” In Oncale v. Sundowner Offshore Services, 523 U.S. 75, Judge Manion noted, the nation’s highest court allowed the complaining male worker to sue his employer because the trial record — replete with threats of physical violence — bolstered the theory that fellow male workers had harassed him precisely because he was a man. But, wrote the judge, the present suit rested largely on unactionable allegations that a male supervisor had harassed the male plaintiff because his gestures — lisping and flipping of the wrists — were specifically intimidating to men and their manhood. Judge Manion concluded that this “record contains no evidence to indicate” that the supervisor’s “gestures,” while evidence of his “homophobia,” were motivated by the requisite “general hostility to men.” In so ruling, the panel affirmed an earlier ruling granting summary judgment to the defending employer. It all began in 1996, when Gary Hamner filed his Title VII case after being fired by St. Vincent Hospital. A nurse at St. Vincent Stress Center, Mr. Hamner allegedly failed to notify his supervisor of having placed a “do not resuscitate” order in a patient’s file as per hospital policy. But Mr. Hamner insisted that he was really fired for having filed a grievance against the unit’s medical director, who was constantly making derogatory gestures at his expense. He thought that he had a prima facie case under Title VII because he reasonably believed that the alleged harassment was “because of his sex.” The 7th Circuit disagreed.
US Supreme Court: Year in Review. September 11-26. Free Program.

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