Client Alerts & Publications

Seventh Circuit Speaks Out on Sexual Orientation Claims Under Title VII


Edward O. Pacer

Published Date:


On April 4, 2017, the Seventh Circuit Court of Appeals issued an en banc decision that was the first of its kind, holding that workplace discrimination that is based on sexual orientation violates the dictates of Title VII of the Civil Rights Act of 1964.  Although some individual states have prohibitions against discrimination in the workplace based on sexual orientation, no federal appellate court had ruled that this protected class was included under the rubric of Title VII, because sexual orientation is not mentioned in the Act.

The decision arose from a lawsuit brought by Kimberly Hively, who had worked as an adjunct instructor at Ivy Tech Community College of Indiana for 14 years.  During that time, she received uniformly good reviews and was recognized by the college as being an outstanding teacher.  In spite of this, Hively was repeatedly passed over when applying for a full-time position at the college.  After ultimately losing her adjunct position, Hively brought suit based on comments made by administrators concerning her being a lesbian and in a relationship with another woman.  It was Hively’s belief that she had suffered adverse employment actions and discrimination because of her sexual orientation.  Specifically, Hively alleged discrimination based on her identification as a lesbian.   The defendant, Ivy Tech, not only fought the charges of discrimination but also challenged Hively’s right to sue based upon Title VII.

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