The case against Ivy Tech Community College which convinced the 7th Circuit Court of Appeals that Title VII protections do include discrimination based on sexual orientation now appears to be headed toward mediation.
A notice filed with the U.S. District Court for the Northern District of Indiana Nov. 17, 2017, indicated the college and the plaintiff, Kimberly Hively, have agreed to Christopher A. Nuechterlein serving as mediator. Nuechterlein, a graduate of Valparaiso Law School, was a magistrate judge for the Northern District of Indiana from 2000 to 2016 and served in the U.S. Department of Justice and as assistant U.S. Attorney in Sacramento, California, for 15 years.
Hively, a math teacher, filed a pro se complaint in 2014 against the Ivy Tech campus in South Bend, claiming she was repeatedly denied promotions and eventually terminated because she is a lesbian in violation of Title VII of the Civil Rights Act of 1964. Ivy Tech was successful at getting the case dismissed in the Northern Indiana District Court on the grounds that Title VII does not extend to sexual orientation.
However, following an en banc hearing about a year ago, a majority of the 7th Circuit concluded discriminating against an individual because of his or her sexual orientation is prohibited by Title VII. The majority opinion written by Chief Judge Diane Wood held Title VII’s restriction of employment discrimination based on sex includes sexual orientation just as the Civil Rights legislation has been found by other courts to include prohibitions against sexual harassment and prejudice toward individuals who do not conform to gender stereotypes.
The case, Hively v. Ivy Tech Community College, 3:14-cv-01791, was remanded to the Northern Indiana District Court. Judge Jon DeGuilio is presiding.
Hively, who was represented at the 7th Circuit by Greg Nevins, counsel and employment fairness project director for Lambda Legal, is now represented by attorneys from Fish & Richardson PC based in Houston, Texas. Ivy Tech continues to be represented by Barnes & Thornburg LLP.