Madeline Buckley

madeline.buckley@indystar.com

An unassuming high school teacher in South Bend, Kim Hively never thought she would be at the center of a civil rights battle.

Back in 2014, Hively, then a part-time instructor at Ivy Tech Community College, filed a complaint because she believed she was passed over for full-time employment because she is a lesbian. She didn't know at the time that the complaint would morph into a federal lawsuit that could settle a contentious question nationally and in Indiana: Should sexual orientation be protected by law from workplace discrimination?

"I hate being the focus," Hively said. "But attention needs to be drawn to this."

U.S. District Judge Rudy Lozano last year dismissed Hively's lawsuit against Ivy Tech not because he found that she wasn't discriminated against by the school. He dismissed the case because the law does not explicitly forbid workplaces from discriminating against employees because of their sexual orientation.

Now, the case is poised to make waves on that issue. Federal law already prohibits discrimination based on sex, race, religion, color and national origin. Hively's attorneys are arguing that the law also should include sexual orientation.

The full 7th U.S. Circuit Court of Appeals in Chicago will hear arguments in the case Wednesday in what could be a precedent-setting decision. Ivy Tech has consistently denied that Hively was not promoted because of her sexual orientation.

"Ivy Tech Community College values and embraces diversity," School spokesman Jeff Fanter said in a statement. "It is an equal opportunity employer that does not condone, and in fact explicitly prohibits, employment discrimination based upon a person’s sexual orientation."

If the court was to rule in favor of Hively — which would allow her to go forward with her lawsuit — the decision would implement workplace protections for gay and lesbian residents within the court's jurisdiction of Indiana, Illinois and Wisconsin. That would essentially render moot an ongoing battle in the Indiana General Assembly over legislation that would add a statewide anti-discrimination clause for LGBT Hoosiers.

But if the court rules against Hively, she could appeal her case to the U.S. Supreme Court, setting her case up to potentially have national impact.

The case is cheered by advocates who say it would offer essential protections for lesbian, gay, bisexual and transgender workers and close a gap left from the landmark U.S. Supreme Court decision, Obergefell v. Hodges, that legalized same-sex marriage, but fell short of implementing workplace protections based on sexual orientation and gender identity.

But the issue has generated concern for religious conservatives who believe such protections could infringe on their own rights to practice their religion.

No clear rule

In July, a panel of judges with the 7th U.S. Circuit Court of Appeals in Chicago upheld a lower court's dismissal of the suit, noting that sexual orientation is not included in workplace protections guaranteed under Title VII of the Civil Rights Act of 1964.

However, the judges criticized the law's omission.

"It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love or marry," the opinion reads.

Hively's case will now go before the full 7th Circuit, after the panel of three judges weighed in on the case.

The issue is complicated by the fact that some courts have held that sex discrimination can act as a stand-in for sexual orientation discrimination. For example, a gay man could win a discrimination case by alleging he was discriminated against for being perceived to have stereotypical feminine mannerisms.

Earlier this month, a federal judge in Pittsburgh allowed a lawsuit to go forward on those grounds. A gay man sued his employer alleging a "sexually hostile work environment." The workplace, Scott Medical Health Center, asked the judge to dismiss the case because sexual orientation is not protected under federal law. The judge, though, sided with the employee, who argued that he was harassed because of his sex.

But that interpretation of the law leaves a gap that doesn't protect LGBT employees who do conform to gender norms, legal experts say. Courts have noted that the protection based on sex discrimination is arbitrary in that it wouldn't protect a gay employee who isn't a feminine man or a masculine woman, said David Orentlicher, a constitutional law professor at the Indiana University Robert H. McKinney School of Law in Indianapolis.

"We don't have a clear rule here," Orentlicher said.

Policy debates

LGBT advocates say the law needs to clearly and explicitly protect sexual orientation from workplace discrimination.

Indiana also does not offer statewide discrimination protections. A bill that sought to add sexual orientation to the state's civil rights protections failed earlier this year. Gay rights debates have rocked the state in recent years, as religious conservatives have fought changing cultural norms.

The lawsuit could offer advocates a way to bypass the Republican-controlled legislature to obtain job protections for LGBT Hoosiers. If the 7th Circuit rules in favor of Hively, it would offer protections in Indiana, Illinois and Wisconsin. Of those, Indiana is the only state that doesn't have its own nondiscrimination statute, Nevins said.

"This would be a very big development for the community in Indiana," said Greg Nevins, Hively's lawyer, who works for Lambda Legal, an organization that works for the civil rights of the LGBT community. Nevins is arguing that sexual orientation is protected under Title VII of the Civil Rights Act of 1964 as a form of sex discrimination.

Chris Paulsen, campaign manager for Freedom Indiana, an LGBT advocacy group, told IndyStar in July that the U.S. Supreme Court will likely have to weigh in on the issue, eventually.

"It really highlights why we need protections that explicitly cover sexual orientation and gender identity," Paulsen said after the 7th Circuit's earlier decision. "There have been rulings that go both directions."

But social conservatives balk at the notion of the courts sidestepping the legislature.

"Activists on the left can't win in the legislature, so they go the court route," said Micah Clark, executive director of the American Family Association of Indiana, an organization that bills itself as a protector against "destructive messages and harmful behaviors." "That's how we got same sex marriage," he said.

Clark lobbied against this year's nondiscrimination bill, citing a fear that it would step on the religious liberty of social conservatives.

"I really think that's an issue that should be played out in the legislature as a policy issue," Clark said.

To the Supreme Court?

If the 7th Circuit rules against Hively, she could appeal the case to the nation's highest court. Then, if the justices accept the case, it could potentially offer workplace protections for the LGBT community across the country.

Orentlicher, the IU law professor, said the issue likely will continue to arise. He said it could eventually be resolved in Congress, or by the Supreme Court — the more likely avenue for such a case given the Republican-controlled Congress.

Even though President-elect Donald Trump has vowed to name a conservative justice to replace Antonin Scalia, Orentlicher noted that Justice Anthony Kennedy was the swing vote in Obergefell v. Hodges.

"Even though President Trump gets the next nomination, Justice Kennedy has sided with protecting against discrimination," he said.

For Hively, she finds herself uncomfortable in the spotlight.

But the issue is too important, she said, for her to not take a stand.

"It's very sad that I could legally get married on Saturday," she said, "and get fired from my job and lose my house on Monday."

Call IndyStar reporter Madeline Buckley at (317) 444-6083. Follow her on Twitter: @Mabuckley88.

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