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Landmark Court Ruling Applies Title VII Protection to Sexual Orientation


Up until recently, federal appellate courts have held that protection under the Civil Rights Act governing sexual discrimination does not extend to protecting against employee discrimination based on sexual orientation. While some states have their own laws that do extend protection against discrimination based on sexual orientation, no federal court had found protection under the federal Civil Rights Act (Title VII).

This sets up the stage for the landmark ruling in Hively v. Ivy Tech Community College. The Seventh Circuit Court of Appeals issued its ruling on the Hively case on April 4, 2017. This case purports to follow the recent “teachings” of the U.S. Supreme Court applying constitutional rights to LGBT individuals.

The Facts of Hively

In Hively, the plaintiff, Kimberly Hively, a woman who openly identified as lesbian, was an adjunct professor part-time at Ivy Tech Community College. During her fourteen years of employment, Ms. Hively tried to apply to over six full-time positions with the college but was never successful. Ms. Hively continued to be passed over for full-time positions despite never receiving a negative performance evaluation and having the requisite education and grades for the positions. Finally, after she had worked at Ivy Tech for fourteen years, Ms. Hively’s contract was not renewed.

Ms. Hively sued Ivy Tech in the United States District Court for the Northern District of Indiana pursuant to Title VII, alleging that they discriminated against her based on her sexual orientation. The District Court dismissed Ms. Hively’s action based on Ivy Tech’s argument that Title VII protection only extends to gender discrimination, not sexual orientation discrimination.

The Court’s Holding in Hively

Reaching a decision en banc, the court opined that the U.S. Supreme Court has started interpreting the rights of lesbian, gay, and bisexual persons in a constitutional context and that there was an inherent problem in protecting against gender discrimination but not sexual orientation discrimination. Based on this analysis, the Seventh Circuit ultimately found “a person who alleges that she experienced employment on the basis of her sexual orientation has put forth a case of sex discrimination for title VII purposes.”

Consequences of Hively

Although the Hively case will only be binding precedent for Wisconsin, Illinois, and Indiana, the case opened the doors for additional federal courts to follow suit and afford protection under Title VII based on sex discrimination. This case should urge employers to rethink their employment policies if they have not already done so to promote non-discriminatory behavior and training for handling LGBT issues in the workplace.

Contact Us Today for Assistance

It is difficult to know whether facts in your case arise to the level of employee discrimination and whether in light of the Hively precedent, other courts will soon find Title VII protection based on sexual orientation. The experienced Clearwater employment law attorneys at Dilla Employment Law, P.A. can help you go through the facts of your case and evaluate the merits of your claim.  Contact us today.


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