Hively v. Ivy Tech Cmty. Coll.

• Decision Date: 28 July 2016
• Docket Number: No. 15-1720,15-1720
• Parties: Kimberly Hively, Plaintiff–Appellant, v. Ivy Tech Community College, South Bend, Defendant–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

830 F.3d 698

Kimberly Hively, Plaintiff–Appellant

v.Ivy Tech Community College, South Bend, Defendant–Appellee.

No. 15-1720

United States Court of Appeals, Seventh Circuit.

Argued September 30, 2015

Decided July 28, 2016

Amended August 3, 2016

Rehearing En Banc Granted, Opinion Vacated October 11, 2016.

Gregory R. Nevins, Attorney, Lambda Legal Defense & Education Fund, Atlanta, GA, 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.

Before Bauer, Ripple, and Rovner, Circuit Judges.

Ripple, Circuit Judge, joins the judgment of the court and joins Parts I and IIA of the panel's opinion.

Rovner

, Circuit Judge.

Once again this court is asked to consider whether Title VII of the Civil Rights Act of 1964 protects employees from or offers redress for discrimination based on sexual orientation. This time, however, we do so in the shadow of a criticism from the Equal Employment Opportunity Commission (EEOC) that this court and others have continued to reflexively declare that sexual orientation is not cognizable under Title VII without due analysis or consideration of intervening case law. The EEOC's criticism has created a groundswell of questions about the rationale for denying sexual orientation claims while allowing nearly indistinguishable gender non-conformity claims, which courts have long recognized as a form of sex-based discrimination under Title VII. After 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. Consequently, we affirm the decision of the district court.

I.

Hively began teaching as a part-time adjunct professor at Ivy Tech Community College in 2000. On December 13, 2013, she filed a bare bones pro se charge with the Equal Employment Opportunity Commission (EEOC) claiming that she had been “discriminated against on the basis of sexual orientation” as she had been “blocked from fulltime [sic] employment without just cause,” in violation of Title VII. (Short Appendix to Appellant's Brief, 5). After exhausting the procedural requirements in the EEOC, she filed a complaint, again pro se, in the district court alleging that although she had the necessary qualifications for full-time employment and had never received a negative evaluation, the college refused even to interview her for any of the six full-time positions for which she applied between 2009 and 2014, and her part-time employment contract was not renewed in July 2014. In short, she alleged that she had been “[d]enied full time employment and promotions based on sexual orientation” in violation of Title VII, 42 U.S.C. §§ 2000e et seq.

The college's defense in both the district court and on appeal is simply that Title VII does not apply to claims of sexual orientation discrimination and therefore Hively has made a claim for which there is no legal remedy. The district court agreed and granted Ivy Tech's motion to dismiss. Hively v. Ivy Tech Cmty. Coll. , No. 3:14–CV–1791, 2015 WL 926015, at *1 (N.D. Ind. Mar. 3, 2015)

.

II.

A.

This panel could make short shrift of its task and affirm the district court opinion by referencing two cases (released two months apart), in which this court held that Title VII offers no protection from nor remedies for sexual orientation discrimination. Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc. , 224 F.3d 701, 704 (7th Cir. 2000)

; Spearman v. Ford Motor Co. , 231 F.3d 1080, 1085 (7th Cir. 2000). Title VII makes it “unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual ... because of such individual's race, color, religion, sex, or national origin” 42 U.S.C. § 2000e–2. This circuit, however, in both Hamner and Spearman, made clear that “harassment based solely upon a person's sexual preference or orientation (and not on one's sex) is not an unlawful employment practice under Title VII.” Hamner , 224 F.3d at 704 ; Spearman , 231 F.3d at 1084 (same). Both Hamner and Spearman relied upon our 1984 holding in Ulane v. Eastern Airlines, Inc. , 742 F.2d 1081 (7th Cir. 1984) in which this court, while considering the Title VII claim of a transsexual airline pilot, stated in dicta that “homosexuals and transvestites do not enjoy Title VII protection.” Id. at 1084. In Ulane, we came to this conclusion by considering the ordinary meaning of the word “sex” in Title VII, as enacted by Congress, and by determining that “[t]he phrase in Title VII prohibiting discrimination based on sex, in its plain meaning, implies that it is unlawful to discriminate against women because they are women and against men because they are men.” Id. at 1085. We also considered the legislative history of Title VII, explaining that it was primarily meant to remedy racial discrimination, with sex discrimination thrown in at the final hour in an attempt to thwart adoption of the Civil Rights Act as a whole. Id. Therefore, we concluded, “Congress had a narrow view of sex in mind when it passed the Civil Rights Act.” Id . at 1086. In a later case describing Ulane, we said that at the time of Ulane “we were confident that Congress had nothing more than the traditional notion of ‘sex’ in mind when it voted to outlaw sex discrimination, and that discrimination on the basis of sexual orientation and transsexualism, for example, did not fall within the purview of Title VII.” Doe by Doe v. City of Belleville, Ill. , 119 F.3d 563, 572 (7th Cir. 1997) (citing Ulane , 742 F.2d at 1085–86 ), abrogated by

Oncale v. Sundowner Offshore Servs., Inc. , 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998).¹

Since Hamner

and Spearman, our circuit has, without exception, relied on those precedents to hold that the Title VII prohibition on discrimination based on “sex” extends only to discrimination based on a person's gender, and not that aimed at a person's sexual orientation. Muhammad v. Caterpillar, Inc. , 767 F.3d 694, 697 (7th Cir. 2014) (citing the holding in Spearman, 231 F.3d at 1085 ); Hamm v. Weyauwega Milk Products, Inc. , 332 F.3d 1058, 1062 (7th Cir. 2003) (“The protections of Title VII have not been extended, however, to permit claims of harassment based on an individual's sexual orientation.”); Schroeder v. Hamilton Sch. Dist. , 282 F.3d 946, 951 (7th Cir. 2002) (“Title VII does not, however, provide for a private right of action based on sexual orientation discrimination.”).

The district court, relying on Hamner

and two district court cases, thus dismissed Hively's complaint with prejudice. Hively , 2015 WL 926015, at *3 (citing Hamner , 224 F.3d at 704 (“harassment based solely upon a person's sexual preference or orientation ... is not an unlawful employment practice under Title VII.”); Wright v. Porters Restoration, Inc. , No. 2:09–CV–163–PRC, 2010 WL 2559877, at *4 (N.D. Ind. June 23, 2010) (“To the extent the Plaintiff may be alleging discrimination based on sexual orientation, the Seventh Circuit has unequivocally held that this type of discrimination is not, under any circumstances, proscribed by Title VII.”); and Hamzah v. Woodmans Food Mkt. Inc. , No. 13–CV–491–WMC, 2014 WL 1207428, at *2 (W.D. Wis. Mar. 24, 2014)

(“[t]o the extent [plaintiff] claims harassment due to his heterosexuality—that is, his sexual orientation, not his sex—he cannot bring a Title VII claim against [the defendant] for these alleged instances of harassment, and the court will dismiss that claim with prejudice.”)).

We are presumptively bound by our own precedent in Hamner

, Spearman, Muhammad, Hamm, Schroeder, and Ulane. “Principles of stare decisis require that we give considerable weight to prior decisions of this court unless and until they have been overruled or undermined by the decisions of a higher court, or other supervening developments, such as a statutory overruling.” Santos v. United States , 461 F.3d 886, 891 (7th Cir. 2006). Our precedent has been unequivocal in holding that Title VII does not redress sexual orientation discrimination. That holding is in line with all other circuit courts to have decided or opined about the matter. See e.g. , Vickers v. Fairfield Med. Ctr. , 453 F.3d 757, 762 (6th Cir. 2006) (perceived sexual orientation and sexual harassment claim); Medina v. Income Support Div., New Mexico, 413 F.3d 1131, 1135 (10th Cir. 2005) ; Bibby v. Phila. Coca Cola Bottling Co. , 260 F.3d 257, 261 (3d Cir. 2001) ; Simonton v. Runyon , 232 F.3d 33, 35 (2d Cir. 2000) ; Higgins v. New Balance Athletic Shoe, Inc. , 194 F.3d 252, 259 (1st Cir. 1999) ; Hopkins v. Balt. Gas & Elec. Co. , 77 F.3d 745, 751–52 (4th Cir. 1996) (noting in a case of same-sex harassment that Title VII does not protect against discrimination based on sexual orientation); U.S. Dep't of Hous. & Urban Dev. v. Fed. Labor Relations Auth. , 964 F.2d 1, 2 (D.C. Cir. 1992) (assuming without deciding that Title VII does not cover sexual orientation discrimination); Williamson v. A.G. Edwards & Sons, Inc. , 876 F.2d 69, 70 (8th Cir. 1989) ; Blum v. Gulf Oil Corp. , 597 F.2d 936, 938 (5th Cir. 1979) ; but see

Rene v. MGM Grand Hotel, Inc. , 305 F.3d 1061, 1068 (9th Cir. 2002) (gay male employee taunted and harassed by coworkers for having feminine traits successfully pleaded claim of sex harassment under Title VII).

Our holdings and those of other courts reflect the fact that despite multiple efforts, Congress has repeatedly rejected legislation that would have extended Title VII to cover sexual orientation.² Moreover, Congress has not acted to amend Title VII even in the face of an abundance of judicial opinions recognizing an emerging consensus that sexual orientation discrimination in the workplace can no longer be tolerated. See, e.g. , Vickers ,...