This post is about a long overdue change in employment law. An adjunct professor at Ivy Tech was reprimanded for kissing her girlfriend. She subsequently was not considered for full-time status in spite of numerous applications. Eventually, Ivy Tech terminated her employment.

     Ms. Hively then sued Ivy Tech alleging gender discrimination. The crux of the claim being the employer would not have disciplined and otherwise taken action against a male employee for kissing his girlfriend.

     Courts previously have refused to consider discrimination based upon sexual preference, taking a literal reading of Title VII (the part of the Civil Rights Act covering employment) and ruling that orientation discrimination was not covered.

And that is what the district court ruled. It dismissed Hively’s case. Hively appealed, and the usual three judge appellate panel in the Seventh Circuit affirmed the dismissal.

     The appeals court was swayed by the U.S. Supreme Court’s expansion of rights for gays. As in, for example, the marriage equality case.

     Ivy Tech, the employer, has said it will not ask the U.S. Supreme Court to review this case, though the time for it to do so has not expired. This means that this is binding precedent in Indiana (along with Illinois and Wisconsin). That is the bottom line. Regardless of what anyone thinks of the decision, it is binding precedent in these three states until such time as a case presenting this issue reaches the U.S. Supreme Court, and that court reverses.

     But make no mistake: my firm belief is this is a long overdue ruling. A woman was disciplined at work for something a man would not have been. That the reason was sexual orientation has no legitimate business purpose.

     One big caveat: it made a point of ruling it was not deciding whether religious employers were covered by this ruling.

     Some local governments also already forbade discrimination based upon sexual orientation, but now the federal remedies of the Civil Rights Act are available to such aggrieved persons.

     I could not agree more.

     So what should you do if you believe you have been discriminated against on the basis of sexual orientation?

  1. If it is harassment report it immediately to human resources, and as high up in the company as you can.

  2. If it is for more tangible discrimination, such as being fired, retain counsel. Legal expertise is crucial in such a situation. That is also the situation if in 1. the employer will not meet its legal obligations in resolving the harassment.

  3. It is necessary to exhaust administrative remedies by going to the EEOC.  That is something counsel can assist with.

Extra Credit:

  1. The case is Kimberly Hively v. Ivy Tech Community College, Case No. 15-1720, decided 4 April 2017.

  2. In March 2017 the Eleventh Circuit Court of Appeals declined to find that sexual orientation discrimination was covered by the Civil Rights Act. This means that there is a split in the federal circuits on an important point of law, making it likely that the U.S. Supreme Court is going to accept a case governing this point of law.

  3. This blog focuses on Indiana cases. Since this is a Seventh Circuit ruling, it is binding precedent in Indiana, Illinois, and Wisconsin.

  4. Legislative intent is relevant for interpreting statutes. In the 1960s, when Congress enacted the pertinent legislation, its members undoubtedly had no interest in having gays protected. This goes under evolving standards of decency that courts will use to extend protections. And Congress has spent decades considering making it explicit that sexual orientation discrimination is illegal, and has declined to do so. Admittedly this is a situation where the overused phrase, “judicial activism” could be reasonably applied. As the dissent did.

  5. Hair length and grooming cases still get nowhere. I do not see this changing any time soon: an employer can forbid only its male employees from wearing eye shadow…not exactly the battle I had in mind when I went to law school.