U.S. Court Rules Sexual-Orientation Discrimination Is Legal
INDIANAPOLIS — An Indiana woman who accused a community college of discrimination lost her case because federal law offers no recourse for those who say they are are subject to workplace problems because of sexual orientation.
On Thursday, a panel of judges with the 7th U.S. Circuit Court of Appeals in Chicago upheld a lower court’s dismissal of the suit filed by Kimberly Hively of South Bend, Ind., a former part-time instructor at Ivy Tech Community College, which has campuses around the state. Hively said the college did not hire her for full-time employment because she is a lesbian.
The ruling highlights a gap in federal civil-rights protections in the workplace: Employees are protected from discrimination based on race, sex, religion, color and national origin, but not sexual orientation. In Indiana, a bill that sought to add sexual orientation to the state’s civil rights protections failed earlier this year.
While dismissing the case, the judges criticized lack of protection for sexual orientation in Title VII of the Civil Rights Act of 1964. The judges said that change must come in a ruling from the U.S. Supreme Court or new legislation from Congress.
“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 opinion reads.
Hively began teaching as a part-time Ivy Tech instructor in 2000. She sued the institution in August 2014, alleging that they turned her down for each of the six full-time positions she applied for between 2009 and 2014 because of her sexual orientation.
She said she never had received a negative evaluation.
After a federal judge in Indiana dismissed the case, ruling that her claim did not fall under the Civil Rights Act, she filed her appeal. It was an argument Ivy Tech made in its response to the lawsuit.
In a response Friday, Ivy Tech spokesman Jeff Fanter denied the bias allegation, said the college values diversity and forbids discrimination based on sexual orientation.
“Ivy Tech Community College … is an equal-opportunity employer that does not condone, and in fact explicitly prohibits, employment discrimination based upon a person’s sexual orientation,” Fanter said in a statement. “Ivy Tech recognizes the importance of this issue and will continue to conduct its operations in a manner that is consistent with its statement of values and its policies prohibiting discrimination.”
The court’s opinion noted an ironic tension with the landmark 2015 Supreme Court decision in the case of Obergefell v. Hodges that legalized same-sex marriage. That decision did not address workplace discrimination.
“The cases as they stand do, however, create a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act,” the opinion reads.
The judges did make note of an exception to the exclusion of sexual orientation from Title VII protections.
In past cases, courts have found that discrimination against someone for not conforming to gender norms falls under sex discrimination. That means a gay man could win a case by alleging he was discriminated against for being perceived to have stereotypical feminine mannerisms, according to the opinion.
If Hively decides she wants to continue moving forward with the case, she could appeal to the Supreme Court or ask the full 7th Circuit court rather than a three-judge panel to hear the case.
Hively’s lawyer, Greg Nevins, said she is considering her options.
“Obviously, she is disappointed with the result,” Nevins said of Hively. Nevins is a lawyer with Lambda Legal, an organization that works for the civil rights of the lesbian, gay, bisexual and transgender community.
Although unfortunate, individual setbacks are part of any marginalized group in the process of equality, Indy Pride President Jason Hinson-Nolen said.
“When you get rulings like this, you can look at this and say it’s disappointing, or you can look at it and say it’s hopeful,” he said. “This opens the door for that and allows the conversation to continue. Sometimes those small steps of disappointment lead us to somewhere that is groundbreaking and to equality across the board.”
Campaign Manager Chris Paulsen of Freedom Indiana said Thursday’s ruling wasn’t surprising.
“It really highlights why we need protections that explicitly cover sexual orientation and gender identity,” Paulsen said. “There have been rulings that go both directions. Different people have to interpret laws differently.
“It’s something that the Supreme Court will have to decide eventually,” she said.
Follow Madeline Buckley on Twitter: @Mabuckley88