7th Circuit Asked To Rehear Title VII Sexual Orientation Case

 by Marilyn Odendahl for www.theindianalawyer.com

The former math instructor at Ivy Tech Community College in South Bend who claims that the school violated her Title VII rights by repeatedly denying her promotions and eventually terminating her employment because she is a lesbian has petitioned the 7th Circuit Court of Appeals for rehearing.

Lambda Legal filed the petition for rehearing and rehearing en banc Thursday, arguing the circuit court should follow the lead of the U.S. Supreme Court rulings since 2000 and find that Title VII protections extend to sexual orientation.

“The 7th Circuit has the power to make this right,” said Greg Nevins, the Lambda Legal attorney representing Kimberly Hively. “The sad reality is that lesbian, gay and bisexual people are vulnerable and losing their jobs because old case law interpreted Title VII too narrowly. It is past time to fix that.”

In Kimberly Hively v. Ivy Tech Community College, South Bend, 15-1720, the 7th Circuit upheld the court’s precedent that Title VII of the Civil Rights Act of 1964 does not cover gays and lesbians who dress and behave like heterosexuals. Written by Judge Ilana Rovner, the 44-page opinion affirmed the dismissal of Hively’s complaint but then undertook an extensive examination of current law and court rulings. At the conclusion, the majority of the court stated its decision was based upon a “paradoxical legal landscape” and asked that Congress or the Supreme Court of the United States settle the question of whether Title VII protections extend to the LGBT community.

The original complaint was filed in the U.S. District Court for the Northern District of Indiana.

Petitioning for a rehearing, Hively emphasized her argument about the differences in how Title VII is applied in sexual discrimination and racial discrimination cases. In its opinion, the panel agreed that a disparity does exist where Title VII extends protections to a woman who is fired for having a romantic relationship with a man of a different race but does not extend protects when that woman has the same type of relationship with another woman.

Quoting passages from the panel’s own opinion, Hively’s petition argued a woman who is attracted to other woman cannot legally be treated differently than a woman who does not conform to another gender stereotype.

The petition stated, “To be sure, the panel opined that differential legal treatment of sexual orientation discrimination could theoretically be justified based on ‘some aspects of a worker’s sexual orientation that create a target for discrimination apart from any issues related to gender,’ citing as possible examples of stereotypes not ‘related to gender’ but instead ‘about particular aspects of the (so-called) gay and lesbian “lifestyle,”…ideas about promiscuity,…spending habits, child-rearing, sexual practices, or politics.’

“But even if it remains legal to fire employees based on such practices or beliefs, it cannot be legal to fire them based on assumption one makes about such practices or beliefs based in part on their race, color, religion, sex, or national origin. Title VII would be violated if a white woman were harassed based on stereotypes about her ‘promiscuity,…spending habits, child-rearing, sexual practices, or politics’ that arose only because she married a black man, and the same must be true if those stereotypes arose only because she married a woman.”

Responding to the petition for rehearing, Ivy Tech pointed to its earlier statement released after the 7th Circuit’s decision. The college steadfastly denied Hively’s allegations and noted it explicitly bans employment discrimination based on sexual orientation.

“In the (Hively v. Ivy Tech) decision the court ruled that such a claim is not recognized under current law and ‘is beyond the scope of the statute,’” the college stated. “Ivy Tech recognizes the importance of this issue and will continue to conduct its operations in a manner that is consistent with its statement of values and its policies prohibiting discrimination.”

Amicus briefs in support of the petition for rehearing were filed by the National Center for Lesbian Rights and GLBTQ Legal Advocates & Defenders, and by five members of Congress (Democratic Sens. Jeffrey Merkley, Tammy Baldwin and Cory Booker and Democratic Reps. David Cicilline and Mark Takano).

The National Center for Lesbian Rights and the GLBTQ Advocators & Defenders noted the practical implications of current precedent on the workplace.

“… the absence of a principled way to determine how courts will rule on Title VII claims by lesbian, gay, or bisexual plaintiffs has left both employers and employees bereft of clear guidance,” the groups argued in the amicus brief. “This instability and unpredictability inherent in such a scheme thwart reliance, leaving litigants to guess as to whether courts will categorize particular facts as evidence of sexual orientation discrimination or as evidence of sex discrimination. Overruling the exclusion would not cause hardship or inequity; rather it would eliminate the inconsistent and inequitable results made inevitable by the existing rule.”