Ruling by full panel overturns 7th Circuit’s previous decisions


Kimberly Hively spent 13 years as a part-time professor at Ivy Tech Community College. The college turned her down for a full-time position six times and then, in 2014, they refused to renew her contract, she said.


Lisa Keen  |  Keen News Service
[email protected]

For the first time ever, a federal appeals court has ruled that a federal law prohibiting sex discrimination in employment also prohibits sexual orientation discrimination.

In an 8-to-3 decision handed down Tuesday, April 4, the 7th Circuit U.S. Court of Appeals, which covers the states of Illinois, Indiana and Wisconsin, reversed a district court’s dismissal of a lawsuit in which an employee alleged her employer discriminated against her because she is a lesbian.

The appeals court remanded the case back to district court.

“We hold only that a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes,” the court concluded.

But that was a big “only.”

Title VII of the federal Civil Rights Act prohibits discrimination based on sex in employment. Though some district courts have made similar rulings, no other federal appeals court has done so, according to Jon Davidson of Lambda Legal, which represented the employee in this case.

And Davidson has speculated that, if the question goes to the Supreme Court, its ultimate resolution “will control other federal laws barring sex discrimination, including Title IX  — which governs discrimination in federally-funded educational programs — along with the Fair Housing Act, the Equal Pay Act, section 1557 of the Affordable Care Act — which bars discrimination in health care and health care insurance — and the Equal Credit Opportunity Act.”

Writing for the majority, the 7th Circuit’s Chief Judge Diane Wood, a Clinton appointee, acknowledged that the decision in Hively v. Ivy Tech required taking a “fresh look” at previous rulings by federal appeals courts “in light of developments at the Supreme Court extending over two decades.”

The case was brought by Kimberly Hively, a part-time math teacher for a small community college in Indiana.

Over the course of her 13 years at Ivy Tech Community College, Hively applied for a full-time position six times and was rejected each time. In 2014, the college declined to renew her part-time contract.

Hively said she believed she was being discriminated against because she is a lesbian.

The district court judge, a Reagan appointee, dismissed the lawsuit, saying that Title VII of the Civil Rights Act — which prohibits sex discrimination — does not prohibit discrimination based on sexual orientation. The lower court judge noted that the 7th Circuit, acting in previous cases, had ruled “Congress intended the term ‘sex’ to mean ‘biological male or biological female,’ and not one’s sexuality or sexual orientation.”

A 7th Circuit panel upheld that decision, saying it was “presumptively bound” by that same precedent.

The majority’s decision acknowledged that the lower courts were bound by precedent and made clear it did not have the authority to add “sexual orientation” to the list of protected categories in Title VII. But the majority opinion said it “must decide what it means to discriminate on the basis of sex … .”

In looking to Supreme Court decisions for guidance, the 7th Circuit relied heavily on Oncale v. Sundowner, a case in which the high court said that Title VII’s prohibition of sex discrimination (and sexual harassment) includes same-sex sexual harassment.

It also relied heavily on Price Waterhouse v. Hopkins, in which the high court ruled that Title VII’s prohibition of discrimination because of “sex” included discrimination against an employee based on expectations for an employee’s appearance and behavior based on their biological sex.

“Any discomfort, disapproval or job decision based on the fact that the complainant — woman or man — dresses differently, speaks differently or dates or marries a same-sex partner, is a reaction purely and simply based on sex,” wrote the majority.

The majority said it also considered strongly the Supreme Court’s rulings in several landmark LGBT-related cases: Romer v. Evans, which struck down a state ban on local ordinances prohibiting sexual orientation discrimination; Lawrence v. Texas, which struck down state laws banning consensual sexual relations between same-sex adults; U.S. v. Windsor, which struck down the federal law that prohibited any recognition of marriage between same-sex couples for federal purposes; and Obergefell v. Hodges, which struck down state laws banning marriage between same-sex partners.

“The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuades us,” wrote the majority, “that the time has come to overrule our previous cases that have endeavored to find and observe that line.”

Shannon Minter, legal director for the National Center for Lesbian Rights, said the decision “opens the door to a new era for LGBTQ plaintiffs under federal sex discrimination law.”

“With this historic decision, the 7th Circuit is the first federal appellate court to acknowledge that discrimination because a person is gay, lesbian or bisexual can only reasonably be understood as discrimination based on sex,” Minter continued. “The court deserves credit for rejecting the tortured rationales of older decisions and undertaking a principled analysis, based on the Supreme Court’s affirmation in Price Waterhouse and other cases, that Title VII of the Civil Rights Act of 1964 must be broadly construed to prohibit the full range of sex-based discrimination.”

Greg Nivens, employment fairness program director for Lambda Legal, noted, “In many cities and states across the country, lesbian and gay workers are being fired because of who they love. But with this decision, federal law is catching up to public opinion — 90 percent of Americans already believe that LGBT employees should be valued for how well they do their jobs, no who they love or who they are. Now through this case and others, that principle is backed up by the courts.

“This decision is a game-changer for lesbian and gay employees facing discrimination in the workplace, and it sends a clear message to employers: It is against the law to discriminate on the basis of sexual orientation,” Nevins said.

Lambda Legal CEO Rachel Tivens added, “Love won again today. … Our movement is about love and pride — pride in yourself and your work, and the freedom to love and to be treated equally.”

Hively, who now takes her case back to the district court for a trial on the merits, said, “I have been saying all this time that what happened to me wasn’t right and was illegal. Now I will have my day in court …. No one should be fired for being lesbian, gay or transgender, like happened to me, and it’s incredibly powerful to know that the law now protects me and other LGBT workers.”

Selise Berry, founder and CEO of Out & Equal Workplace Advocates, said that the 7th Circuit’s ruling proves that “checks and balances set up in this country are working just as they should,” and she noted that the 7th Circuit is “one of our most conservative courts.”

“The courts ruled in line with what our country’s largest corporations have known for decades — that having a diverse and authentic workforce is not just the smart thing to do, it’s the right thing to do,” Berry said.

© 2017 Keen News Service. All rights reserved.

This article appeared in the Dallas Voice print edition April 7, 2017.