On April 4, 2017, the United States Court of Appeals for the Seventh Circuit issued an 8-3 en banc decision in Hively v. Ivy Tech Cmty. Coll. of Indiana, holding that a person who alleges an experience of employment discrimination based on sexual orientation has a cause of action for sex discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). This is the first time that a federal appeals court has held that Title VII protects LGBTQ employees from discrimination in the workplace. The Seventh Circuit’s decision was issued less than one month after the Eleventh Circuit Court of Appeals held that Title VII does not provide a cause of action for workplace discrimination based on sexual orientation (as Chilivis Grubman reported last month). The recent split between these two federal appeals courts makes it more likely that the U.S. Supreme Court could soon address this issue.


The facts in Hively involve Kimberly Hively, a part-time adjunct professor who filed suit in August 2014, alleging she was denied the promotion to full-time employment at Ivy Tech Community College (“Ivy Tech”) in South Bend, Indiana, because she is a lesbian. Judge Rudy Lozano of the U.S. District Court for the Northern District of Indiana dismissed Hively’s suit in March 2015. Hively then appealed to a three-judge panel of the Seventh Circuit, which initially affirmed the District Court’s dismissal in July 2016. Hively requested a rehearing, which was granted, and the case was heard en banc in November 2016. This en banc rehearing resulted in the 8-3 decision to reverse the District Court’s dismissal of Hively’s action.


The Seventh Circuit’s reasoning focused on the meaning of the word “sex” under Title VII, which is a term Congress included in 1964 as a prohibited basis for employment discrimination. The majority opinion, written by Chief Judge Diane Wood, explained that just because the enacting Congress might not have anticipated a particular application of the law, such “cannot stand in the way of the provisions of the law that are on the books.” The court looked at how prior cases had interpreted Title VII’s sex discrimination provision to prohibit issues such as employers favoring men over women, or sexual harassment in the workplace, and even discrimination based on a person’s failure to conform to gender stereotypes, and reasoned that such interpretations would likely surprise the Congress that originally passed Title VII. The court analyzed Hively’s allegations compared to prior holdings involving sex discrimination based on non-conformity with gender stereotypes, and held that “[a]ny discomfort, disapproval, or job decision based on the fact that the complainant—woman or man—dresses differently, speaks differently, or dates or marries a same-sex partner, is a reaction purely and simply based on sex. That means that it falls within Title VII’s prohibition against sex discrimination.”


Judge Richard Posner wrote an opinion concurring with the majority that discussed how “[h]omosexuality was almost invisible” when Title VII was passed, and so while it was not an issue considered by the enacting Congress, laws now “frequently are interpreted on the basis of present need and understanding rather than original meaning.” The dissent, written by Judge Diane Sykes, took the position that the majority opinion’s interpretation went too far by stating, “[w]e are not authorized to infuse the text with a new or unconventional meaning or to update it to respond to changed social, economic, or political conditions.”


This Seventh Circuit’s decision does not resolve Hively’s case, but merely permits her to return to the lower court to pursue the litigation. Hively will still have the burden of proving that Ivy Tech subjected her to adverse employment actions based on her sexual orientation, which Ivy Tech disputes. Chilivis Grubman will continue to monitor developments and update this alert as appropriate. You can read the Seventh Circuit’s full opinion here.


The attorneys at Chilivis Grubman represent clients of all types and sizes in connection with employment-related matters, including those brought under Title VII and similar employment discrimination statutes. For any questions, or if we can be of any assistance with such a matter, please contact us at (404) 262-6505 or sgrubman@cglawfirm.com.