The 7th Circuit Court of Appeals on Tuesday granted an ex-Ivy Tech employee’s request for the full court to hear her sexual orientation discrimination case against the school.
The order vacates the three-judge panel’s July opinion that affirmed the dismissal of Kimberly Hively’s lawsuit against the community college in South Bend, citing caselaw which makes clear that harassment based solely upon a person’s sexual preference or orientation is not an unlawful employment practice under Title VII of the Civil Rights Act of 1964.
Hively, previously a part-time adjunct professor since 2000, sued the school in 2014 after she was passed over on multiple occasions for full-time employment with the school. She alleged it was because she is a lesbian.
The July opinion written by Judge Ilana Rovner noted that the writing may be on the wall that people who bring sexual orientation discrimination claims under Title VII should be protected.
Hively asked for a rehearing in August, emphasizing the differences in how Title VII is applied in sexual discrimination and racial discrimination cases.
Ivy Tech has denied Hively’s allegations, saying it embraces and values diversity and explicitly prohibits employment discrimination based upon a person’s sexual orientation.
A press release from Lambda Legal, which is representing Hively, pointed to a July 2015 Equal Employment Opportunity Commission ruling in Baldwin v. Foxx that sexual orientation discrimination “necessarily” is sex discrimination. Lambda Legal also said that several other court rulings have agreed that federal antidiscrimination laws also protect LGBT people.
Oral arguments are set for 10 a.m. Nov. 30. Each side will be allowed no more than 30 minutes.