Hively v. Ivy Tech Community College
Update, October 11: the U.S. Seventh Circuit Court of Appeals has granted en banc review. Read more
Kimberly Hively, a former part-time instructor at Ivy Tech Community College in Indiana represented by Lambda Legal, is pursuing a Title VII sex discrimination claim against her former employer, charging that she was repeatedly passed over for full-time employment and was ultimately fired because she is a lesbian. In July 2016 a three-judge panel of the federal U.S. Court of Appeals for the Seventh Circuit acknowledged the unsettled nature of current law and the seeming merit in Hively's claim, but nevertheless affirmed the trial court's dismissal of Kimberley's case, citing existing Seventh Circuit precedent that Title VII does not protect against sexual orientation discrimination.
Lambda Legal has petitioned on Hively's behalf for a rehearing of the case by all active Seventh Circuit judges (called "en banc"), arguing that the controlling Circuit precedent is outdated; improperly and unworkably narrow; and in conflict with more recent federal district court and Equal Employment Opportunity Commission decisions finding, for various reasons, that sexual orientation discrimination is sex discrimination.
GLAD and the National Center for Lesbian Rights have filed a friend-of-the-court brief in support of Hively's petition to have the full court rehear the case, arguing that the Court should not be bound to follow the existing Circuit rule (excluding sexual orientation from protection under Title VII) because it is unworkable and leads to inconsistent results. The brief notes that the Court has acknowledged that stare decisis [reliance on precedent] must give way when a precedent has proven “unsound in principle or unworkable in practice.”