Former Ivy Tech prof may ask 7th Circuit to rehear sexual orientation discrimination suit

The 7th Circuit Court of Appeals has granted a former Ivy Tech Community College adjunct professor, who claims she was passed over for promotions based on her sexual orientation, an extension of time to file a petition for rehearing and rehearing en banc.

Kimberly Hively, who is now represented by Lambda Legal, asked for an extra 14 days, in part, because of the complex questions this case raised about Title VII of the Civil Rights Act of 1964’s prohibition on sex discrimination against lesbian, gay and bisexual individuals. The court granted the extension Tuesday which gives counsel until Aug. 25 to file a rehearing petition.
 
Originally in a pro se complaint filed in the U.S. District Court for the Northern District of Indiana, Hively asserted she was denied full-time employment and promotions because of her sexual orientation in violation of Title VII. The District Court granted the college’s motion to dismiss on the grounds that the plaintiff made a claim for which there is no legal remedy because Title VII does not apply to claims of sexual orientation discrimination.

Lambda Legal, a national advocate for civil rights for lesbians, gays and people with HIV/AIDS, picked up the case and filed the appeal with the 7th Circuit. The case is Kimberly Hively v. Ivy Tech Community College, South Bend, 15-1720.

Although the 7th Circuit affirmed the District Court, the panel pointed out the odd body of caselaw that only protects lesbians and gays who act according to stereotype.

“It seems likely that neither the proponents nor the opponents of protecting employees from sexual orientation discrimination would be satisfied with a body of case law that protects ‘flamboyant’ gay men and ‘butch’ lesbians but not the lesbian or gay employee who act and appear straight,” Judge Ilana Rovner wrote for the majority. “This type of gerrymandering to exclude some forms of gender-norm discrimination but not others leads to unsatisfying results.”  

In the motion for an extension, Hively’s counsel said that she needs more time to decide if she wants to seek a further review from the 7th Circuit. Also, her attorneys asserted that “a number of interested parties” have indicated they want to file amicus curiae briefs in support of any petition for rehearing and rehearing en banc if Hively moves for such relief.