Kimberly Hively, the adjunct math professor whose employment discrimination complaint changed Title VII law in the 7th Circuit, has settled with her former employer, Ivy Tech Community College. But the issue of whether the Civil Rights Act provision extends to sexual orientation continues to roil in other judicial districts and may yet be examined by the U.S. Supreme Court.
The parties in Hively v. Ivy Tech, 3:14-cv-1791, filed a joint mediation summary statement Aug. 1 in the U.S. District Court for the Northern District of Indiana, announcing the settlement. Terms of the agreement were not released.
Attorneys for Hively and Ivy Tech did not return calls for comment by IL deadline. Ivy Tech only confirmed a settlement had been reached.
On Aug. 3, 2014, Hively represented herself and filed a handwritten complaint in federal court against Ivy Tech. She claimed during her 14 years of teaching at the community college, she had been repeatedly denied full-time employment and promotions because of her sexual orientation in violation of Title VII of the Civil Rights Act of 1964.
Hively sought monetary damages of $1.7 million to cover the full-time pay, benefits and pension amounts she lost, plus interest.
After the district court dismissed her case, ruling Title VII does not recognize sexual orientation as a protected class, Hively turned to the 7th Circuit Court of Appeals. There she was represented by Gregory Nevins, attorney and workplace fairness program strategist for Lambda Legal.
The three-judge panel affirmed the district court’s ruling in Hively. However, Judge Ilana Rovner wrote an extensive opinion for the majority, dissecting the simmering confusion in the federal courts over the reach of Title VII. Inspired, Hively filed for rehearing and in a landmark decision issued April 4, 2017, the majority of the 7th Circuit found the Civil Rights Act protection does prohibit discrimination based on sexual orientation.
About a year later, the 2nd Circuit agreed. In Zarda v. Altitude Express, Inc., 15-3775, the New York-based appellate court also held an en banc hearing, and a 10-judge majority concluded sexual orientation discrimination is a subset of sex discrimination.
But a split in the circuit courts was opened when an 11th Circuit panel maintained Title VII did not extend to sexual orientation in Jameka K. Evans v. Georgia Regional Hospital, et al., 15-15234. Lambda Legal, who was representing Evans, filed a petition for a writ of certiorari with the U.S. Supreme Court in September 2017. The justices denied the petition in December 2017.
Even so, the issue is not settled. Another circuit court is facing the same Title VII question and another petition is before the U.S. Supreme Court. On May 29, 2018, Altitude Express filed a writ of certiorari asking the nine Supreme Court justices to decide whether Title VII covers sexual orientation.
Also, a new case is on the docket in the 8th Circuit Court of Appeals. Mark Horton claims Midwest Geriatric Management LLC violated Title VII by discriminating against him when it rescinded a job offer after learning he was gay.
The case, Horton v. Midwest Geriatric Management, 18-1104, was appealed after the U.S. District Court for the Eastern District of Missouri dismissed Horton’s claim. Amicus briefs have been filed by The Becket Fund for Religious Liberty and jointly by eight states, but no date for oral arguments has been scheduled.