The 7th Circuit Court of Appeals will again consider whether the protections offered by Title VII of the 1964 Civil Rights Act extend to sexual orientation.
The Chicago-based court has a precedence of limiting the scope of Title VII but Judge Ilana Rovner called that stance into question in a 40-plus page opinion in Kimberly Hively v. Ivy Tech Community College, 15-1720. She pointed out the contradiction that has emerged from the federal courts where only the gays and lesbians who act and dress according to society’s stereotypical expectations are covered by Title VII.
“It seems likely that neither the proponents nor the opponents of protecting employees from sexual orientation discrimination would be satisfied with a body of case law that protects ‘flamboyant’ gay men and ‘butch’ lesbians but not the lesbian or gay employee who act and appear straight,” Rovner wrote. “This type of gerrymandering to exclude some forms of gender-norm discrimination but not others leads to unsatisfying results.”
Hively, a former adjunct math professor at Ivy Tech in South Bend, filed a pro se complaint against the college after she was denied full-time employment multiple times. She alleged she was passed over for promotion because she is a lesbian.
The U.S. District Court for the Northern District of Indiana granted Ivy Tech’s motion to dismiss. Lambda Legal then picked up Hively’s case and presented arguments before the 7th Circuit.
Although the appellate panel also found in favor of Ivy Tech, the plaintiff and her attorneys saw an opening in Rovner’s opinion. Hively petitioned for a rehearing and the court granted the request in October.
Oral arguments in the en banc hearing will begin at 10 a.m. (CST) Wednesday in the Ceremonial Courtroom of the Everett McKinley Dirksen United States Courthouse in Chicago. Each side will have 30 minutes.
The Equal Employment Opportunity Commission will be joining the plaintiffs in oral arguments.
In a letter sent to the 7th Circuit, the EEOC asserted that Title VII already prohibits discrimination on the basis of sexual orientation as highlighted in EEOC v. Scott Medical Health Center, 16-225, 2016 WL 6569233 (W.D. Pa. Nov. 4, 2016). There, the federal agency noted, the district court found the U.S. Supreme Court’s ruling in Obergefell v. Hodges, 135 S. Ct. 2584, 2605-06 (2015), which allowed same-sex couples to marry, is part of recent legal developments that “demonstrate a growing recognition of the illegality of discrimination on the basis of sexual orientation.”