In Kimberly Hively v. Ivy Tech Community College¹, the U. S. Court of Appeals for the Seventh Circuit decided whether Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on sexual orientation. On July 28, 2016, the court held Hively failed to state a claim for sex discrimination under Title VII based solely on her sexual orientation, affirming the prior decision by the U.S. District Court for the Northern District of Indiana, South Bend Division.

Hively was a part-time adjunct professor at Ivy Tech Community College and alleged that she was discriminated against by being blocked from full-time employment and promotion because of her sexual orientation in violation of Title VII.² Ivy Tech’s defense was that Title VII does not apply to sexual orientation claims.³ The U.S. District Court for the Northern District of Indiana agreed. Hively appealed to the Seventh Circuit.

The Seventh Circuit in two prior cases, Hamner v. St. Vincent Hospital & Health Care Ctr, Inc.⁴ and Spearman v. Ford Motor Co.⁵, held that harassment based on solely on sexual orientation and not on one’s gender is not unlawful under Title VII. In deciding these cases, the Seventh Circuit relied upon its prior 1984 case Ulane v. Eastern Airlines, Inc.⁶ The court in Ulane considered the ordinary meaning of the word sex and were confident that Congress intended the word sex in Title VII to have the ordinary meaning and not a more expanded meaning of sexual orientation and transsexualism.⁷

The Seventh Circuit considered itself bound by its own precedent that Title VII does not redress sexual orientation discrimination.⁸ The court further explained that its precedent was in line with other circuit courts which have addressed the same issue.⁹ Moreover, the Seventh Circuit noted that legislation to extend Title VII to sexual orientation has been repeatedly rejected by Congress.¹⁰

Because Hively’s complaint did not state a claim which on its face was sufficient for the court to provide relief, Ivy Tech was in a perfect position to file a successful motion to dismiss. Hively’s attempt to overcome the motion to dismiss failed because on its face her claim of sexual orientation alone is not a violation of Title VII.¹¹

Although the court relied on its precedent to render its decision, it expressed its sentiment with regard to inequality. This quote from the opinion indicates the feeling of the court while faced with the court’s precedent to which it rightfully followed until the law is changed or the Supreme expands Title VII to include sexual orientation without regard to the repeated failure of any such legislation amending Title VII.

“Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it (see Baldwin, 2015 EEOPUB LEXIS 1905, WL 4397641 at **5,10); many of the federal courts to consider the matter have stated that they do not condone it (see, e.g., Vickers, 453 F.3d at 764-65; Bibby, 260 F.3d at 265; Simonton, 232 F.3d at 35; Higgins, 194 F.3d at 259; Rene, 243 F.3d at 1209, (Hug, J., dissenting); Kay, 142 F. App’x at 51; Silva, 2000 U.S. App. LEXIS 8197, 2000 WL 525573 at *1); and this court undoubtedly does not condone it (see Ulane, 742 F.2d. at 1084). But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent, and therefore, the decision of the district court is AFFIRMED.”¹²

Hively petitioned the U. S. Court of Appeal for the Seventh Circuit for a hearing before all of the Seventh Circuit Judges. The en banc hearing was granted on October 11, 2016. En Banc Argument is scheduled for November 30, 2016. The EEOC was granted leave to participate in the oral argument, but must use some of Ms. Hively’s allotted time to do so.

_{1 830 F.3d 698 (7th Cir. 2016).}

_{2 Id. at 699.}

_{3 Id.}

_{4 224 F.3d. 701 (7th Cir. 2000).}

_{5 231 F.3d 1080 (7th Cir. 2000).}

_{6 742 F.2d 1081 (7th Cir. 1984).}

_{7 Hively at 700.}

_{8 Id. at 701.}

_{9 Id.}

_{10 Id.}

_{11 Id. at 702.}

_{12 Id. at 718}