Hively v. Ivy Tech Community College of Indiana

853 F.3d 339, 2017 WL 1230393, 2017 U.S. App. LEXIS 5839, 130 Fair Empl. Prac. Cas. (BNA) 1, 101 Empl. Prac. Dec. (CCH) 45,770
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 4, 2017
Docket15-1720
StatusPublished
Cited by143 cases

This text of 853 F.3d 339 (Hively v. Ivy Tech Community College of Indiana) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339, 2017 WL 1230393, 2017 U.S. App. LEXIS 5839, 130 Fair Empl. Prac. Cas. (BNA) 1, 101 Empl. Prac. Dec. (CCH) 45,770 (7th Cir. 2017).

Opinions

WOOD, Chief Judge.

Title VII of the Civil Rights Act of 1964 makes it unlawful for employers subject to the Act to discriminate on the basis of a person’s “race, color, religion, sex, or national origin....” 42 U.S.C. § 2000e-2(a). For many years, the courts of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person’s sexual orientation. The Supreme Court, however, has never spoken to that question. In this case, we have been asked to take a [341]*341fresh look at our position in light of developments at the Supreme Court extending over two decades. We have done so, and we conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination. We therefore reverse the district court’s judgment dismissing Kimberly Hively’s suit against Ivy Tech Community College and remand for further proceedings.

I

Hively is openly lesbian. She began teaching as a part-time, adjunct professor at Ivy Tech Community College’s South Bend campus in 2000. Hoping to improve her lot, she applied for at least six full-time positions between 2009 and 2014. These efforts were unsuccessful; worse yet, in July 2014 her part-time contract was not renewed. Believing that Ivy Tech was spurning her because of her sexual orientation, she filed a pro se charge with the Equal Employment Opportunity Commission on December 13, 2013. It was short and to the point:

I have applied for several positions at IVY TECH, fulltime, in the last 5 years. I believe I am being blocked from full-time employment without just cause. I believe I am being discriminated against based on my sexual orientation. I believe I have been discriminated against and that my rights under Title VII of the Civil Rights Act of 1964 were violated.

After receiving a right-to-sue letter, she filed this action in the district court (again acting pro se). Ivy Tech responded with a motion to dismiss for failure to state a claim on which relief can be granted. It argued that sexual orientation is not a protected class under Title VII or 42 U.S.C. § 1981 (which we will disregard for the remainder of this opinion). Relying on a line of this court’s cases exemplified by Hamner v. St. Vincent Hosp. and Health Care Ctr., Inc., 224 F.3d 701 (7th Cir. 2000), the district court granted Ivy Tech’s motion and dismissed Hively’s case with prejudice.

Now represented by the Lambda Legal Defense & Education Fund, Hively has appealed to this court. After an exhaustive exploration of the law governing claims involving discrimination based on sexual orientation, the panel affirmed. Hively v. Ivy Tech Cmty. Coll., 830 F.3d 698 (7th Cir. 2016). It began its analysis by noting that the idea that discrimination based on sexual orientation is somehow distinct from sex discrimination originated with dicta in Ulane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984). Ulane stated (as if this resolved matters) that Title VII’s prohibition against sex discrimination “implies that it is unlawful to discriminate against women because they are women and against men because they are men.” Id. at 1085. From this truism, we deduced that “Congress had nothing more than the traditional notion of ‘sex’ in mind when it voted to outlaw sex discrimination. ...” Doe v. City of Belleville, Ill., 119 F.3d 563, 572 (7th Cir. 1997), cert. granted, judgment vacated sub nom. City of Belle-ville v. Doe, 523 U.S. 1001, 118 S.Ct. 1183, 140 L.Ed.2d 313 (1998), abrogated by Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998).

Later cases in this court, including Hamm v. Weyauwega Milk Prods., 332 F.3d 1058 (7th Cir. 2003), Hamner, and Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000), have accepted this as settled law. Almost all of our sister circuits have understood the law in the same way. See, e.g., Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999); Dawson v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005); Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, [342]*342290 (3d Cir. 2009); Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138, 143 (4th Cir. 1996); Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979); Kalich v. AT&T Mobility, LLC, 679 F.3d 464, 471 (6th Cir. 2012); Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989); Medina v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir. 2005); Fredette v. BVP Mgmt. Assocs., 112 F.3d 1503, 1510 (11th Cir. 1997). A panel of the Eleventh Circuit, recognizing that it was bound by the Fifth Circuit’s precedent in Blum, 597 F.2d 936, recently reaffirmed (by a 2-1 vote) that it could not recognize sexual orientation discrimination claims under Title VII. Evans v. Georgia Reg’l Hosp., 850 F.3d 1248,1255-57 (11th Cir. 2017). On the other hand, the Second Circuit recently found that an openly gay male plaintiff pleaded a claim of gender stereotyping that was sufficient to survive dismissal. The court observed that one panel lacked the power to reconsider the court’s earlier decision holding that sexual orientation discrimination claims were not cognizable under Title VII. Christiansen v. Omnicom Group, Inc., No. 16-748, 852 F.3d 195, 2017 WL 1130183 (2d Cir. Mar. 27, 2017) (per curiam). Nonetheless, two of the three judges, relying on many of the same arguments presented here, noted in concurrence that they thought their court ought to consider revisiting that precedent in an appropriate case. Id. at 198-99, 2017 WL 1130183 at *2 (Katzmann, J., concurring). Notable in its absence from the debate over the proper interpretation of the scope of Title VII’s ban on sex discrimination is the United States Supreme Court.

That is not because the Supreme Court has left this subject entirely to the side. To the contrary, as the panel recognized, over the years the Court has issued several opinions that are relevant to the issue before us. Key among those decisions are Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), and Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). Price Waterhouse held that the practice of gender stereotyping falls within Title VII’s prohibition against sex discrimination, and Oncale clarified that it makes no difference if the sex of the harasser is (or is not) the same as the sex of the victim. Our panel frankly acknowledged how difficult it is “to extricate the gender nonconformity claims from the sexual orientation claims.” 830 F.3d at 709. That effort, it commented, has led to a “confused hodge-podge of cases.” Id. at 711.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
853 F.3d 339, 2017 WL 1230393, 2017 U.S. App. LEXIS 5839, 130 Fair Empl. Prac. Cas. (BNA) 1, 101 Empl. Prac. Dec. (CCH) 45,770, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hively-v-ivy-tech-community-college-of-indiana-ca7-2017.