On October 11, The U.S. Seventh Circuit Court of Appeals issued an order granting Kimberly Hively an en banc rehearing in her case against her former employer, South Bend, Indiana’s Ivy Tech Community College.
Hively’s lawsuit alleges “she repeatedly applied for and was passed over for full-time positions at the college because she is a lesbian.” Although she was not formally fired from Ivy Tech, she claims “administrators simply stopped scheduling her to teach courses.”
U.S. District Court Judge Rudy Lozano originally dismissed the case, saying “the law does not explicitly forbid workplaces from discriminating against employees because of their sexual orientation.” The Seventh Circuit Court of Appeals affirmed the trial judgement in a July 28 decision in which Circuit Judge Ilana Rovner writes, “[a]fter a careful analysis of our precedent, however, this court must conclude that Kimberly Hively has failed to state a claim under Title VII for sex discrimination; her claim is solely for sexual orientation discrimination which is beyond the scope of the statute.”
On August 25, Hively and her attorneys filed a petition for en banc rehearing with amicus support from the U.S. Equal Opportunity Employment Commission (“EEOC”). At the hearing, EEOC attorney Gail Coleman argued in favor of concluding that protection under Title VII already includes sexual orientation within the existing language, saying “[t]his court is not being asked to add a new protected class to the statute,” and reminding the court that discriminating against an individual over their failure to conform to sex-based stereotypes has already been considered a violation under Title VII. According to Coleman, the “quintessential failure to conform to a gender norm … is going against the expectation that men will be attracted to women and women will be attracted to men,” arguing that discriminating against someone on the basis of their sexual orientation is a form of sex discrimination.