U.S. Court of Appeals for the Seventh Circuit which covers federal courts in Illinois, Indiana and Wisconsin, recently held in Lively v. Ivy Tech Community College of Indiana that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation. The Court in Hively reasoned that sexual orientation discrimination is essentially indistinguishable from sex discrimination because the former relies on stereotyped concepts about how men and women should behave sexually and about with whom they should associate in their intimate lives.
The plaintiff, Kimberly Hively, is an openly gay professor who alleged that her former employer, Ivy Tech Community College, discriminated against her on the basis of her sexual orientation. Specifically, Hively became a part-time, adjunct faculty member at Ivy Tech in 2000. Between 2009 and 2014, Hively applied for six full-time positions at Ivy Tech but was never hired. In July of 2014, Ivy Tech notified Hively that her part-time position contract was not going to be renewed.
The Seventh Circuit’s decision in Hively is significant because it represents a split in the various circuits regarding whether Title VII protects LGBTQ individuals who are discriminated against on the basis of their sexual orientation rather than just their gender. As we noted in our recent blog post (http://www.cookcraig.com/blog/president-trump-keeps-2014-executive-order/ ) the Fourth Circuit has repeatedly held that Title VII does not protect individuals from discrimination on the basis of their sexual orientation. The Hively decision and resulting circuit split now makes it more likely that this issue will soon end up before the Supreme Court.