The Seventh Circuit Court of Appeals yesterday reheard oral arguments in the case of an Indiana college math instructor who was allegedly denied promotion and ultimately fired for being a lesbian.
Kimberly Hively’s case dates to 2009 when someone reported seeing her kiss her girlfriend goodbye in a car in the campus parking lot at Ivy Tech Community College in South Bend. The next day an administrator allegedly reprimanded her for “sucking face” and admonished her for being unprofessional.
In August 2014, Hively filed a lawsuit against the college claiming the school violated Title VII of the 1964 Civil Rights Act when they denied her full-time employment and promotions on the basis of her sexual orientation. The trial court dismissed Hively’s claim, ruling that Title VII does not protect employees from anti-gay discrimination.
— Freedom Indiana (@freedom_indiana) November 30, 2016
In July of this year, the Seventh Circuit rejected an appeal filed by Lambda Legal to reverse the lower court’s ruling and to reinstate Hively’s complaint against the school.
In that ruling, Circuit Judge Ilana Rovner said it was difficult to justify denying employment protections to LGBT people following the Supreme Court’s decision striking down state bans on gay marriage. However, Rovner said the court was bound by a “confused hodge-podge” of decisions dating back to the 1980s in which the 7th Circuit dismissed discrimination claims by gay workers.
Reuters reports that the full 7th U.S. Circuit Court of Appeals in Chicago will now consider Hively’s appeal of that decision and has the power to reverse previous decisions.
The Obama administration has submitted court briefs on Hively’s behalf. Yesterday, a lawyer from the Equal Employment Opportunity Commission (EEOC) joined Lambda Legal’s Greg Nevins in arguing her case.
According to the Washington Blade, following the hearing EEOC Commissioner Chai Feldblum said:
“The term ‘sex,’ as it was interpreted in 1964, should have been interpreted right then to include sexual orientation, because when you discriminate against someone based on sexual orientation, you are taking sex into account. … The courts are now beginning to see that the term ‘sex’ [for example] includes treating a male who is involved with another man differently than a man who is involved with a woman. It’s a very commonsense legal argument that the EEOC set forth in an opinion in 2015.”
Nevins said that although every appeals court to consider the issue has ruled that Title VII does not protect gay employees, judges have become more receptive to revising the law in recent years.
While federal law does not explicitly bar workplace discrimination against LGBT people, 22 states prohibit employment discrimination based on sexual orientation. All efforts to pass a federal law protecting gay people from job discrimination have so far failed.
Watch Lambda Legal’s report on the case below.