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Sexual Orientation Discrimination Protected Under Title VII

Labor and Employment

Federal Circuit Courts

Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (April 4, 2017).

Overview
Hively, an open lesbian, filed charges with the Equal Employment Opportunity Commission against her former employer, Ivy Tech Community College of Indiana (Ivy Tech) and received a right-to-sue letter.  She then sued Ivy Tech in district court for violating Title VII of the Civil Rights Act of 1964 (Title VII).  Ivy Tech filed a motion to dismiss for failure to state a claim on which relief could be granted, which the district court granted.  Hively appealed and the U.S. Court of Appeals for the Seventh Circuit reversed the district court’s decision to dismiss Hively’s complaint and remanded the case for further proceedings.

Summary
Hively worked for Ivy Tech for several years as an adjunct professor.  She applied for a promotion several times and was denied.  In 2014 her contract was not renewed.  She filed a charge with the Equal Employment Opportunity Commission, stating she believed she was being blocked from full-time employment without cause, that she was being discriminated against based on her sexual orientation, and that her rights were being violated under Title VII.

Title VII makes it unlawful for employers that are subject to the Civil Rights Act of 1964 to discrimination on the basis of a person’s race, color, religion, sex, or national origin. (42 U.S.C. 2000e-2(a)).

On appeal before the U.S. Court of Appeals for the Seventh Circuit, Ivy Tech argued that sexual orientation is not a protected class under Title VII.  Hively argued that “sex discrimination” includes discrimination on the basis of sexual orientation.  The Court of Appeals addressed the issue of what it meant to be discriminated against on the basis of sex, in particular, whether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex.

The Court of Appeals, acknowledging that the U.S. Supreme Court has not recognized sexual orientation as part of Title VII’s sex discrimination protection, nevertheless reversed the district court.  It found that it is impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, which is protected against under Title VII.  The Court of Appeals noted that, as here, a person who alleges she experienced employment discrimination on the basis of her sexual orientation has, for purposes of Title VII, put forth a case of discrimination on the basis of sex.