What the Seventh Circuit’s Decision in Hively v. Ivy Tech Community College of Indiana Means For You

April 2017

53 years to the day after civil rights leader Martin Luther King, Jr. was assassinated, on April 4, 2017, the Seventh Circuit Court of Appeals ruled in Hively v. Ivy Tech Community College of Indiana that an employer violates Title VII of the Civil Rights Act of 1964 if it discriminates against an employee on the basis of his or her sexual orientation. This ruling has garnered national headlines because Title VII does not contain the phrase “sexual orientation.” Employers and employees alike should be aware of the case and its potential ramifications.

Hively v. Ivy Tech: From a College to the Courtroom

Kimberly Hively, an openly lesbian teacher, worked as an adjunct professor at Ivy Tech Community College’s South Bend, Indiana campus. Hively applied for at least six full-time positions in a five-year span, receiving no promotions before her part-time contract was non-renewed in 2014.

Hively believed Ivy Tech had discriminated against her because of her sexual orientation.  She filed a lawsuit in federal district court claiming Ivy Tech’s conduct was prohibited by Title VII.  The federal district court, noting that although Title VII prohibits discrimination on the basis of sex, it does not explicitly prohibit discrimination on the basis of sexual orientation, dismissed her case. Hively’s case eventually came before the entire “en banc” set of judges at the Seventh Circuit Court of Appeals.

In a landmark 8-3 ruling, the Seventh Circuit held that an employer violates Title VII when it discriminates on the basis of sexual orientation. Although the phrase “sexual orientation” is not found in Title VII, the court reasoned, sex plays a role in employment decisions based on sexual orientation. In order words, the court concluded that sexual orientation discrimination is a form of sex discrimination and is therefore prohibited by Title VII.

What Hively Means For You and Your Company

When the Seventh Circuit’s ruling in Hively hit the headlines, you may have wondered whether this decision affects you or your company. For most, the answer is: probably not—at least not yet. For one thing, the Hively ruling applies only in the Seventh Circuit, covering Wisconsin, Illinois, and Indiana. Individuals and companies without any connection to those states are not directly impacted by the ruling. However, even if you or your company are not within those states, you may be subject to another state statute, executive order, administrative order, or other regulation prohibiting discrimination in employment based on an employee’s sexual orientation. For example, Minnesota state law already specifically prohibits employment discrimination based on both sexual orientation and gender identity.

If you are an employer with an office in Wisconsin, Illinois, and Indiana, and you conduct regular business in those states, or have an office or conduct business in another state that has prohibited sexual orientation discrimination, you will definitely want to account for this landmark decision in the handling of your business. This includes, but is not limited to, making sure your company has an Equal Employment Opportunity policy in place, as well as other policies to ensure compliance with the law.

What Comes Next?

Many court-watchers speculate the case is a strong candidate to be reviewed by the Supreme Court of the United States. The Supreme Court is highly selective, accepting review of only approximately 80 cases out of 7,000-8,000 new cases each term.  If the Supreme Court accepts review of Hively, it could then render a decision with a nationwide effect.

FMJ’s employment lawyers have over a century of combined experience helping employers work through issues such as these.  If your company does not have an Equal Employment Opportunity policy or employment handbook in place, contact us to draft a policy tailored to your company’s needs. In addition, FMJ’s employment lawyers are knowledgeable about employment law and civil rights issues and can consult with employers and employees to evaluate their options.

This post was written by trial and appellate attorney Andrew James. If you have any questions about the above article, contact Andrew at andrew.james@fmjlaw.com.