Lambda Legal Seeks Rehearing by Full Seventh Circuit Court in Ivy Tech Employment Discrimination Case

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August 26, 2016
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Today, Lambda Legal filed a petition seeking a rehearing by the full U.S. Court of Appeals for the Seventh Circuit on behalf of Kimberly Hively, an instructor who was repeatedly denied promotions, full-time employment and ultimately fired from Ivy Tech Community College in Indiana because she is a lesbian.

Last month, a three-judge panel of the Seventh Circuit affirmed the dismissal of her discrimination claim under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of sex.

“The Seventh Circuit has the power to make this right,” said Greg Nevins, Counsel and Employment Fairness Strategist for Lambda Legal. “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."

Lambda Legal on the Case: Hively v. Ivy Tech Community College

“Justice cannot wait," added Nevins. "Kimberly Hively, who was denied advancement and lost a job that she loved just because she is a lesbian, cannot wait. Lesbian, gay and bisexual people who refuse to live in the closet cannot wait. If the panel of three judges didn’t feel it was in their power to overturn this problematic precedent, the full Seventh Circuit can and should.

“In its earlier ruling, the Court recognized that treating same-sex attraction differently than other nonconformity with gender norms was arbitrary, calling the distinction ‘elusive’, ‘false’, and ‘not merely blurry, but… un-definable.’ Yet, the Court reaffirmed that distinction anyway and cut out our client and any lesbian, gay or bisexual person who otherwise conforms to the stereotypes of their gender (in other words, someone who may ‘pass’ for straight) but who refuse to hide their sexual orientation,” Nevins said.

Kimberly Hively was a part-time instructor at Ivy Tech Community College in South Bend, Indiana for fourteen years. In August of 2014, Hively filed a lawsuit in a federal trial court against the college, arguing that the school violated Title VII when it denied her full-time employment and promotions on the basis of her sexual orientation.

The trial court dismissed Hively’s lawsuit and held that Title VII does not protect employees from antigay discrimination. Lambda Legal filed an appeal on Hively’s behalf seeking reversal and reinstatement of her complaint, which was denied just a few weeks ago. Several federal district courts and the EEOC have agreed that sexual orientation discrimination is a form of sex discrimination and thereby a prohibited employment practice.

Read the press release.