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Hively v. Ivy Tech Cmty. College of Ind.

United States Court of Appeals for the Seventh Circuit

November 30, 2016, Argued; April 4, 2017, Decided

No. 15-1720

Opinion

 [*340]  Wood, Chief Judge. Title VII of the Civil Rights Act of 1964 makes it unlawful for employers subject to the Act to discriminate on the basis of a person's "race, color, religion, sex, or national origin ... ." 42 U.S.C. § 2000e-2(a). For many years, the courts of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person's sexual orientation. [**2]  The Supreme Court, however, has never spoken to that question. In this case, we have been asked to take a  [*341]  fresh look at our position in light of developments at the Supreme Court extending over two decades. We have done so, and we conclude today that ] discrimination on the basis of sexual orientation is a form of sex discrimination. We therefore reverse the district court's judgment dismissing Kimberly Hively's suit against Ivy Tech Community College and remand for further proceedings.

Hively is openly ***. She began teaching as a part-time, adjunct professor at Ivy Tech Community College's South Bend campus in 2000. Hoping to improve her lot, she applied for at least six full-time positions between 2009 and 2014. These efforts were unsuccessful; worse yet, in July 2014 her part-time contract was not renewed. Believing that Ivy Tech was spurning her because of her sexual orientation, she filed a pro se charge with the Equal Employment Opportunity Commission on December 13, 2013. It was short and to the point:

I have applied for several positions at IVY TECH, fulltime, in the last 5 years. I believe I am being blocked from fulltime employment without just cause. I believe I am being [**3]  discriminated against based on my sexual orientation. I believe I have been discriminated against and that my rights under Title VII of the Civil Rights Act of 1964 were violated.

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853 F.3d 339 *; 2017 U.S. App. LEXIS 5839 **; 130 Fair Empl. Prac. Cas. (BNA) 1; 101 Empl. Prac. Dec. (CCH) P45,770; 102 Empl. Prac. Dec. (CCH) P46,035; 2017 WL 1230393

KIMBERLY HIVELY, Plaintiff-Appellant, v. IVY TECH COMMUNITY COLLEGE OF INDIANA, Defendant-Appellee.

Subsequent History: Motion granted by Hively v. Ivy Tech Cmty. Coll., 2018 U.S. Dist. LEXIS 110396 (N.D. Ind., May 4, 2018)

Prior History:  [**1] Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:14-cv-1791 — Rudy Lozano, Judge.

Hively v. Ivy Tech Cmty. College, 2015 U.S. Dist. LEXIS 25813 (N.D. Ind., Mar. 3, 2015)

CORE TERMS

sex, sex discrimination, sexual orientation, homosexual, woman, discriminate, sexual-orientation, gender, stereotyping, cases, ***, female, motive, sexual, comparative method, national origin, fired, religion, male, harassment, color, sexual harassment, classify, same-sex, words, heterosexual, workplace, courts, marry, trait

Labor & Employment Law, Discrimination, Title VII Discrimination, Scope & Definitions, Gender & Sex Discrimination, Scope & Definitions, Sexual Orientation, Governments, Legislation, Interpretation, Civil Procedure, Appeals, Reviewability of Lower Court Decisions