Ct. of Appeals Rules Sexual Orientation is Protected Under Employment Discrimination Law

Case involved Ivy Tech part-time professor who alleged she was fired for being gay

April 4, 2016-In what will become a landmark ruling, the United States Court of Appeals in Chicago ruled that an individual fired for being gay has a cause of action under existing employment discrimination law. The case involved form Ivy Tech Adjunct Professor Kimberly Hivey. Kimberly alleged that she was passed over for full-time positions and ultimately fired because she is a gay woman. She filed a claim with the Equal Employment Opportunity Commission and the United States District Court in Hammond. Judge Rudy Lozano, relying on existing law that Title VII provides no protections for discrimination based on sexual orientation.

“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” the Court acknowledged. “In this case, we have been asked to take a 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” the Court ruled.

In so holding the Court looked to a line of cases that involved gender stereotypes. The United States Supreme Court first addressed gender stereotypes in the case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In the Price Waterhouse case, Hopkins alleged she was passed over for partnership several times because she failed to act in conformity to how women should act and dress. Hopkins successfully argued that the terms used to describe her-aggressive, foul-mouthed and demanding-were used as positive character traits when reviewing the conduct of males. In the present case the 7th Circuit relied on the Supreme Court’s notation that “all gay, lesbian and bisexual persons fail to comply with the sine qua non of gender stereotypes—that all men should
form intimate relationships only with women, and all women should form intimate relationships only with men.” Looking to gay marriage cases the Court noted it creates “a paradoxical legal
landscape in which a person can be married on Saturday and then fired on Monday for just that act.”

The Court rejected an argument by Barnes & Thornburgh, lawyers for Ivy Tech that Congress has considered amending Title VII of the Civil Rights Act of 1964 to include sexual orientation but has failed to do so:

Ivy Tech sets great store on the fact that Congress has frequently considered amending Title VII to add the words “sexual orientation” to the list of prohibited characteristics, yet it has never done so. Many of our sister circuits have also noted this fact. In our view, however, it is simply too difficult to draw a reliable inference from these truncated legislative initiatives to rest our opinion on them. The goalposts have been moving over the years, as the Supreme Court has shed more light on the scope of the language that already is in the statute: no sex discrimination.

Lamba Legal represented Kimberly Hivey. You can learn more about her case, and read the full opinion of the Seventh Circuit Court of Appeals, at The Lambda Legal Website-http://www.lambdalegal.org/in-court/cases/in_hively-v-ivy-tech

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