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In Landmark Decision, Seventh Circuit Holds that Sex Includes Sexual Orientation

In a groundbreaking, 8-3 decision in Hively v. Ivy Tech Community College of Indiana, the full Seventh Circuit Court of Appeals has ruled that workplace discrimination based on sexual orientation violates federal civil rights law.

The court found that such discrimination is a form of sex discrimination in violation of Title VII of the Civil Rights Act of 1964, the federal law prohibiting employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. The decision in favor of Kimberly Hively, an instructor at Ivy Tech Community College who was fired for being a lesbian, makes the Seventh Circuit the highest federal court to reach this conclusion, overruling previous Seventh Circuit precedent by deciding the case en banc.

In August of 2014, Kimberly Hively sued Ivy Tech Community College, arguing that the school violated Title VII of the Civil Rights Act of 1964 when it denied her full-time employment and promotions after she had been seen with her then-girlfriend in the parking lot of the school. The trial court dismissed Hively’s lawsuit and held that Title VII does not protect employees from sexual orientation discrimination. A three-judge panel ruled against Hively in July 2016 and Hively requested a rehearing of the case by the full panel of the Seventh Circuit – all eleven judges.

In concluding that discrimination on the basis of sexual orientation is a form of sex discrimination, the court states:

“… Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual. Our panel described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all. Hively’s claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man).”

You can read the full decision here and listen to the oral argument or read the briefing here.

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