Week Ending 4/7/17: Hively v. Ivy Tech

Schorr & Associates’ Employment Case of The Week ending April 7, 2017

Hively v. Ivy Tech Cmty. College of Ind., 2017 U.S. App. LEXIS 5839, (7th Cir. [En banc], April 4, 2017)

In a case we have been closely watching, the 7th Circuit, ruling en banc, held that sexual orientation discrimination is protected by Title VII.  We wrote about this case on October 14, 2016, when the Seventh Circuit agreed to hear en banc, a ruling which agreed that sexual orientation should be protected, but nevertheless ruled that precedent would not permit the Court to extend that right.  An en banc appeal is where all of the Circuit judges in a particular circuit agree to hear a case that had been previously heard by only a panel of Circuit judges.

To recap the facts and procedures, Kimberly Hively, a part-time adjunct professor, sued Ivy Tech Community College in South Bend, Indiana, alleging that she had been denied numerous full-time positions solely due to her sexual orientation.  The College’s only defense is that Title VII does not apply to claims of sexual orientation and therefore Hively made a claim for which there is no legal remedy.  The District Court agreed and Hively appealed to the Seventh Circuit.  The Seventh Circuit affirmed, but attacked the law as illogical and anachronistic.

The Full panel of the 7th Circuit was far from unanimous.  The majority held that, by its definition, sexual orientation is necessary about sex:

Viewed through the lens of the gender nonconformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual. Our panel described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all. Hively's claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man).

There were two concurring opinions, which agreed with the majority, but expressed additional reasons.  Both concurring opinions were written by Judge Posner, one of the smartest and most influential jurists to never be on the Supreme Court.  There was a dissent written by Judge Sykes, who believes that it should be up to Congress to change the law by statute and not up to the Courts to make that decision.

Ivy Tech Community College has already announced that they will not appeal the decision to the U.S. Supreme Court.  The School insists that it does not discriminate on the basis of sexual orientation and did not discriminate against Ms. Lively.  The case will now go through the litigation process, Since this had begun on a motion to dismiss, the case is essentially now starting from scratch.

As we stated before, sexual orientation and gender identity discrimination is protected by the New Jersey Law Against Discrimination.  Federal law in the Third Circuit, where New Jersey is, still does not recognize protection for sexual orientation.  This case is only precedent in the Seventh Circuit, so the fight for equal rights for the LGBTQ community continues.

Appellate Judges: WOOD, Chief Judge, and BAUER, POSNER, FLAUM, EASTERBROOK, RIPPLE, KANNE, ROVNER, WILLIAMS, SYKES, and HAMILTON, Circuit Judges. POSNER, Circuit Judge, concurring. FLAUM, Circuit Judge, joined by RIPPLE, Circuit Judge, concurring. SYKES, Circuit Judge, with whom BAUER and KANNE, Circuit Judges, join, dissenting.

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