November 30, 2016 at 5:05 pm EST | by Matt Simonette - Windy City Times
Appellate court rehears Hively discrimination case
Hively, gay news, Washington Blade

EEOC Commissioner Chai Feldblum attended Wednesday’s hearing. (Windy City Times photo by Matt Simonette)

By MATT SIMONETTE | Windy City Times

The Seventh Circuit Court of Appeals, on Nov. 30, reheard oral arguments in the case of Kimberly Hively, an Indiana math instructor who was allegedly denied promotion and ultimately fired for being a lesbian.

The case, Hively v. Ivy Tech Community College, tests whether the sex discrimination protections afforded by Title VII of the Civil Rights Act of 1964 apply to discrimination based on sexual orientation as well.

Hively said she was denied promotions several times by Ivy Tech and sued the school in federal court in 2014 for Title VII violations. But the court threw out that suit, arguing that Hively would not be protected on the basis of her sexual orientation. A three-person appellate panel upheld that decision in July 2016, but Hively was granted the new hearing — this time with the entire 11-person panel—in October.

Greg Nevins, counsel and workplace fairness program director for Lambda Legal, and Jon Davidson, legal director and Eden/Rushing chair for Lambda Legal, represented Hively. That organization has long maintained that sexual orientation-based discrimination protections should fall under the larger umbrella of gender-based discrimination protections.

Nevins argued in the hearing that the term “sex discrimination” should be interpreted as a colloquial phrase covering sexual orientation-based discrimination and that the plaintiffs were not suggesting new classes of people for protection.

Judge Ilana Rovner asked Nevins whether that was actually placing too much power into the judiciary, especially since Congress has long been reticent to address the issue. Nevins answered that it would be the court’s responsibility to apply the terms of the statute, and Congress’ to augment it, a process he said might be analogous to implementation of the Americans with Disabilities Act.

“What you have is an incoherent framework that’s inherently inconsistent,” Nevins said.

Ivy Tech attorney John Maley faced aggressive grilling from the panel, some of whom asked why the school was essentially defending the position that it had the right to discriminate.

“You seem to think that the meaning [of the law] is frozen,” said Judge Richard Posner. “You think we’re bound by what people were thinking in 1964?”

Maley later said that the question of whether sexual orientation is ultimately encompassed in the larger category of gender “is developing. …That makes it an ideal issue for Congress.”

But Posner was nonetheless skeptical, asking, “Who’s going to be hurt by giving lesbians and homosexuals a little more job protection?”

Attorneys from the Equal Employment Opportunity Commission (EEOC) joined Hively’s lawyers on the case. Members of that body have argued that LGBT individuals are entitled to Title VII protections.

EEOC Commissioner Chai Feldblum, a lesbian, attended the hearing and said afterward, “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 spoke of the potential for the case to set precedent, and said that many people are surprised to learn such basic rights for LGBT people have not yet been codified.

“It will be a groundbreaking decision,” he said. “It will be a game-changer. The American people will say, ‘Of course, we knew this all along.'”

In a Nov. 30 statement through Lambda Legal, Hively said, “Being denied advancement again and again was heartbreaking. Then to lose my job altogether, it was completely demoralizing. It didn’t matter that I was a good employee. The fact that I am a lesbian meant that I was never going to be good enough for them. To have gotten this far in my case makes me optimistic — I have a lot of hope.”

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