Legal Discrimination No More

U.S. appeals court says a lesbian former adjunct has the right to sue Ivy Tech under Title VII, a federal anti-bias law, for discrimination based on sexual orientation.

April 5, 2017
 
Kimberly Hively

A federal appeals court ruled 8 to 3 Tuesday that a lesbian former adjunct may sue Ivy Tech Community College for discrimination based on her sexual orientation.

The ruling says that Title VII of the Civil Rights Act of 1964, which bars employment discrimination based on race, gender, national origin, religion and other factors, can also be used to sue for bias on the basis of sexual orientation.

A ruling last year by a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit said that the former adjunct had no right to sue, even if she suffered discrimination. That ruling concerned many advocates for gay academics, as it seemed to say they had no federal recourse for discrimination. The judges themselves seemed concerned, writing in last year's ruling of "a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act."

That ruling was based in significant part on the idea that when Congress passed Title VII, it was not thinking about discrimination based on sexual orientation. But Tuesday's ruling by the full appeals court found that a series of Supreme Court and appeals court rulings have applied Title VII in cases that go beyond basic gender discrimination. So too has the Equal Employment Opportunity Commission, the full appeals court noted.

Title VII has been used in cases involving perceptions of people, whom they associate with and other factors that are consistent with discrimination based on sexual orientation, the appeals court decision said.

"In the years since 1964, Title VII has been understood to cover far more than the simple decision of an employer not to hire a woman for Job A or a man for Job B," the decision says. "The Supreme Court has held that the prohibition against sex discrimination reaches sexual harassment in the workplace, including same-sex workplace harassment; it reaches discrimination based on actuarial assumptions about a person’s longevity; and it reaches discrimination based on a person’s failure to conform to a certain set of gender stereotypes. It is quite possible that these interpretations may also have surprised some who served in the 88th Congress [which enacted Title VII]. Nevertheless, experience with the law has led the Supreme Court to recognize that each of these examples is a covered form of sex discrimination."

Being a lesbian was an example of gender nonconformity that is covered by Title VII, the ruling said.

The dissent, like the earlier decisions in the case, focused on the original intent of the 88th Congress.

The lawsuit in question was brought by Kimberly Hively in 2014, after she worked as an adjunct instructor in mathematics at Ivy Tech for 14 years, during which she not only received good reviews from her supervisors but won an award from the college for outstanding teaching.

She sued after repeatedly applying for and being rejected for permanent positions at the college and being rejected for continued employment as an adjunct. In an interview last year, she said that she traced the rejections to her sexual orientation after hearing about administrators who had commented to others about her being a lesbian in a relationship with another woman.

Tuesday's ruling, like previous decisions in the case, made no determination of the merits of Hively's suit, but focused on her right to sue under Title VII.

Ivy Tech, in defending itself against the suit, challenged her right to sue under Title VII. Tuesday night the college announced that it would drop that argument but would continue to fight in court on the charges of discrimination, not Hively's right to sue.

“Ivy Tech Community College rejects discrimination of all types; sexual orientation discrimination is specifically barred by our policies,” said a statement from the college. “Ivy Tech respects and appreciates the opinions rendered by the judges of the Seventh Circuit Court of Appeals and does not intend to seek Supreme Court review. The college denies that it discriminated against the plaintiff on the basis of her sex or sexual orientation and will defend the plaintiff’s claims on the merits in the trial court.”

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