Hively v. Ivy Tech Community College of Indiana
2017 U.S. App. LEXIS 5839
| 7th Cir. | 2017Background
- Kimberly Hively, an openly lesbian adjunct professor at Ivy Tech, applied for multiple full-time positions (2009–2014); her part-time contract was not renewed in 2014 and she alleged sexual-orientation discrimination.
- Hively filed an EEOC charge, received a right-to-sue letter, and brought a Title VII suit alleging sex discrimination.
- District court dismissed under Seventh Circuit precedent holding sexual-orientation discrimination is not covered by Title VII; a panel affirmed.
- The en banc Seventh Circuit reconsidered whether discrimination based on sexual orientation constitutes discrimination "because of sex" under 42 U.S.C. § 2000e-2(a).
- The en banc court reversed the dismissal, holding sexual-orientation discrimination is a form of sex discrimination and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Title VII’s prohibition of discrimination “because of sex” covers sexual-orientation discrimination | Hively: discriminating against a woman for being attracted to women is discrimination because of her sex (comparative and associational theories) | Ivy Tech: sexual orientation is a distinct category, not equivalent to "sex"; courts should not rewrite statute | Yes — the court held sexual-orientation discrimination is a form of sex discrimination under Title VII; case reversed and remanded |
| Whether gender nonconformity/sex-stereotyping doctrine covers sexual-orientation claims | Hively: sexual orientation claims are indistinguishable from gender nonconformity claims; Hopkins supports coverage | Ivy Tech: Hopkins doesn’t erase the distinction; sexual orientation and sex are different concepts | Yes — court treated sexual-orientation discrimination as falling within sex stereotyping/sex-based analysis |
| Whether associational discrimination doctrine (Loving line) applies to sexual associations | Hively: adverse action for same-sex association is discrimination because of plaintiff’s sex (analogy to interracial-association cases) | Ivy Tech: Loving relates to race and constitutional law; not persuasive for Title VII text | Yes — court applied associational theory to show discrimination against same-sex associations is sex-based |
| Whether precedent and statutory original meaning bar reading Title VII to cover sexual orientation | Ivy Tech/dissent: longstanding circuit precedent, ordinary 1964 meaning of "sex" excludes sexual orientation; change must come from Congress | Hively: Supreme Court interpretations (Hopkins, Oncale) and doctrinal developments permit broader reading | En banc majority: precedent overruled — Supreme Court guidance and doctrinal developments justify reading Title VII to cover sexual-orientation discrimination |
Key Cases Cited
- Price Waterhouse v. Hopkins, 490 U.S. 228 (plurality & concurring justices recognized sex stereotyping as evidence of sex discrimination)
- Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (same-sex harassment can be discrimination "because of sex")
- Loving v. Virginia, 388 U.S. 1 (associational discrimination: restrictions on intimate association grounded in protected characteristic)
- Meritor Sav. Bank v. Vinson, 477 U.S. 57 (Title VII covers sexual harassment — context for broad reading of "sex")
- Romer v. Evans, 517 U.S. 620 (Equal Protection protections for sexual-orientation-related classifications)
- United States v. Windsor, 570 U.S. 744 (federal recognition of same-sex relationships implicated equal-protection principles)
- Obergefell v. Hodges, 576 U.S. 644 (Due Process and Equal Protection protect same-sex marriage; doctrinal context for rights of same-sex couples)