Hively v. Ivy Tech Cmty. Coll. of Ind., No. 15-1720

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtWood, Chief Judge.
Citation853 F.3d 339
Parties Kimberly HIVELY, Plaintiff-Appellant, v. IVY TECH COMMUNITY COLLEGE OF INDIANA, Defendant-Appellee.
Docket NumberNo. 15-1720
Decision Date04 April 2017

853 F.3d 339

Kimberly HIVELY, Plaintiff-Appellant,
v.
IVY TECH COMMUNITY COLLEGE OF INDIANA, Defendant-Appellee.

No. 15-1720

United States Court of Appeals, Seventh Circuit.

Argued November 30, 2016
Decided April 4, 2017


Gregory R. Nevins, Attorney, Lambda Legal Defense & Education Fund, Atlanta, GA, Jon W. Davidson, Attorney, Lambda Legal Defense And Education Fund, Inc., Los Angeles, CA, Omar Gonzalez-Pagan, Attorney, Lambda Legal Defense & Education Fund, New York, NY, for Plaintiff–Appellant.

Adam Lee Bartrom, Jason T. Clagg, Attorneys, Barnes & Thornburg LLP, Fort Wayne, IN, John Robert Maley, Attorney, Barnes & Thornburg LLP, Indianapolis, IN, for Defendant–Appellee.

Shannon Price Minter, Attorney, National Center for Lesbian Rights, San Francisco, CA, for Amicus Curiae National Center for Lesbian Rights.

Mary Lisa Bonauto, Attorney, Gay & Lesbian Advocates & Defenders, Boston, MA, for Amicus Curiae GLBTQ Legal Advocates & Defenders.

Gail S. Coleman, Attorney, Equal Employment Opportunity Commission, Washington, DC, for Amicus Curiae Equal Employment Opportunity Commission.

Ria Tabacco Mar, Attorney, American Civil Liberties Union, New York, NY, for Amicus Curiae America Civil Liberties Union.

Evan Chesler, Attorney, Cravath, Swaine & Moore, New York, NY, for Amicus Curiae Five Members of Congress.

Before Wood, Chief Judge, and Bauer, Posner, Flaum, Easterbrook, Ripple, Kanne, Rovner, Williams, Sykes, and Hamilton, Circuit Judges.

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

853 F.3d 341

fresh 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 fulltime 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 Belleville 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) ;

853 F.3d 342

Prowel v. Wise Bus. Forms, Inc. , 579 F.3d 285, 290 (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. It also noted that "all gay, lesbian and bisexual persons fail to comply with the sine qua non of gender stereotypes—that all men should form intimate relationships only with women, and all women should form intimate relationships only with men." Id. Especially since the Supreme Court's recognition that the Due Process and Equal Protection Clauses of the Constitution protect the right of same-sex couples to marry, Obergefell v. Hodges , ––– U.S. ––––, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), bizarre results ensue from the current regime. As the panel noted, it creates "a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act." 830 F.3d at 714. Finally, the panel highlighted the sharp tension between a rule that fails to recognize that discrimination on the basis of the sex with whom a person associates is a form of sex discrimination, and the rule, recognized since Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), that discrimination on the basis of the race with whom a person associates is a form of racial discrimination.

Despite all these problems, the panel...

To continue reading

Request your trial
129 practice notes
  • Woods v. Seattle's Union Gospel Mission, No. 96132-8
    • United States
    • United States State Supreme Court of Washington
    • March 4, 2021
    ...interest of the highest order that may override legitimate claims to free exercise of religion); Hively v. Ivy Tech Cmty. Coll. of Ind. , 853 F.3d 339, 355 (7th Cir. 2017) (Posner, J., concurring) (recognizing "[t]he compelling social interest" against discrimination based on sexual orienta......
  • O'Halloran v. Metro. Transp. Auth.,
    • United States
    • New York Supreme Court Appellate Division
    • August 22, 2017
    ...determined that sexual orientation discrimination is, in essence, "sex discrimination" (see Hively v. Ivy Tech Community Coll. of Ind., 853 F.3d 339, 345 [7th Cir.2017] ).4 We note that, in her brief, plaintiff states that "Defendants questioned Plaintiff regarding, and there were many refe......
  • M.A.B. v. Bd. of Educ. of Talbot Cnty., Civil Action No. GLR–16–2622
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • March 12, 2018
    ...of gender stereotyping is actionable sex discrimination under Title VII based on Price Waterhouse. See Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 351–52 (7th Cir. 2017)286 F.Supp.3d 715(en banc); Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 200–01 (2d Cir. 2017) (per curiam); Prowel......
  • Boyden v. Conlin, 17-cv-264-wmc
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • September 18, 2018
    ...holding that: (1) Title VII's prohibition extends to discrimination based on sexual orientation, Hively v. Ivy Tech Cmty. Coll. of Ind. , 853 F.3d 339, 345 (7th Cir. 2017) (en banc); and (2) even more pertinent to this case, differential treatment based on sex-based stereotypes as applied t......
  • Request a trial to view additional results
117 cases
  • Woods v. Seattle's Union Gospel Mission, No. 96132-8
    • United States
    • United States State Supreme Court of Washington
    • March 4, 2021
    ...interest of the highest order that may override legitimate claims to free exercise of religion); Hively v. Ivy Tech Cmty. Coll. of Ind. , 853 F.3d 339, 355 (7th Cir. 2017) (Posner, J., concurring) (recognizing "[t]he compelling social interest" against discrimination based on sexual orienta......
  • O'Halloran v. Metro. Transp. Auth.,
    • United States
    • New York Supreme Court Appellate Division
    • August 22, 2017
    ...determined that sexual orientation discrimination is, in essence, "sex discrimination" (see Hively v. Ivy Tech Community Coll. of Ind., 853 F.3d 339, 345 [7th Cir.2017] ).4 We note that, in her brief, plaintiff states that "Defendants questioned Plaintiff regarding, and there were many refe......
  • M.A.B. v. Bd. of Educ. of Talbot Cnty., Civil Action No. GLR–16–2622
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • March 12, 2018
    ...of gender stereotyping is actionable sex discrimination under Title VII based on Price Waterhouse. See Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 351–52 (7th Cir. 2017)286 F.Supp.3d 715(en banc); Christiansen v. Omnicom Grp., Inc., 852 F.3d 195, 200–01 (2d Cir. 2017) (per curiam); Prowel......
  • Boyden v. Conlin, 17-cv-264-wmc
    • United States
    • United States District Courts. 7th Circuit. Western District of Wisconsin
    • September 18, 2018
    ...holding that: (1) Title VII's prohibition extends to discrimination based on sexual orientation, Hively v. Ivy Tech Cmty. Coll. of Ind. , 853 F.3d 339, 345 (7th Cir. 2017) (en banc); and (2) even more pertinent to this case, differential treatment based on sex-based stereotypes as applied t......
  • Request a trial to view additional results
11 books & journal articles
  • BOSTOCK WAS BOGUS: TEXTUALISM, PLURALISM, AND TITLE VII.
    • United States
    • Notre Dame Law Review Vol. 97 Nbr. 1, November 2021
    • November 1, 2021
    ...14-cv-1791, 2015 WL 926015 (N.D. Ind. 2015), aff'd, 830 F.3d 698 (7th Cir. 2016), rev'd sub nom. Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en (30) We use the term "gay" to mean one intimately attracted to others of one's same sex or gender, and regardless of the ......
  • Rushing to Get Rid of Greek Life and Social Clubs: The Impact of Bostock on Single-Sex College Organizations.
    • United States
    • Case Western Reserve Law Review Vol. 71 Nbr. 3, March 2021
    • March 22, 2021
    ...105. (207.) Id. at 108 (discussing Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc); Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339 (7th Cir. 2017) (en (208.) Id. at 109. (209.) Complaint at 2, Alpha Phi Int'l Fraternity, Inc. v. President & Fellows of Harvard Coll.,......
  • CLEARTEXTUALISM AND SEXUALISM.
    • United States
    • Washington University Global Studies Law Review Vol. 21 Nbr. 3, September 2022
    • September 22, 2022
    ...(2d Cir. 2008); Parr v. Woodmen of World Life Ins. Co., 791 F.2d 888 (11th Cir. 1988). (123) See Hively v. Ivy Tech Cmty. Coll. Of Ind., 853 F.3d 339, 347-49 (7th Cir. (124) Bostock, 140 S. Ct. at 1765 (quoting Altitude Express Inc. v. Zarda, 883 F.3d 100, 158-59 (2d Cir. 2017) (Lynch, J., ......
  • HOUSING LAW - NOT OVER THIS THRESHOLD: THE CRISIS OF CONTINUED HOUSING DISCRIMINATION AGAINST QUEER AMERICANS - SMITH V. AVANTI, 249 F. SUPP. 3D 1194 (D. COLO. 2017).
    • United States
    • Suffolk Journal of Trial & Appellate Advocacy Vol. 26 Nbr. 1, January 2021
    • January 1, 2021
    ...to mean 'biological male or biological female,' and not one's sexuality or sexual orientation." Id.; see also Hively v. Ivy Tech Cmty., 853 F.3d 339, 346-7 (7th Cir. 2017) (expanding scope of discrimination based on sex and sex [A] policy that discriminates on the basis of sexual orientatio......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT