In a case that could extend workplace protection to the LGBT community, federal appellate judges in Chicago are reconsidering whether the Civil Rights Act of 1964 applies to discrimination based on sexual orientation.

The case, heard Wednesday before a full panel of 7th Circuit Court judges, revolves around a South Bend, Ind., math teacher who contends she was repeatedly denied promotions and fired from the Indiana community college where she worked because she is a lesbian.

Kimberly Hively brought the federal lawsuit against Ivy Tech Community College in the U.S. District Court for the Northern District of Indiana in August 2014. Judges dismissed her case in March 2015, finding that Hively failed to state her claim under Title VII of the Civil Rights Act, which bans workplace discrimination by sex but doesn’t explicitly address sexual orientation. A panel of three 7th Circuit judges upheld that ruling in a 42-page opinion issued in July, but all 12 judges voted in October to vacate that ruling and rehear the case.

Hively, 50, was not at the hearing Wednesday because she was at her new job teaching high school math.


Her case dates to 2009 when someone reported seeing Hively kiss her girlfriend goodbye in a car in the campus parking lot. The next day, Hively said in a phone interview Wednesday, an administrator reprimanded her for “sucking face” and admonished her for being unprofessional. She was an adjunct teacher at the time.

In the four years that followed, Hively said her treatment at the college changed. She was not granted full-time status despite multiple applications and was let go in 2014. It took her a year to find a new job teaching in a high school, which required her to go back to school and get certified. She filed the first lawsuit herself, she said, because no attorney in Indiana wanted to touch her case.

“The biggest consequence was that it stripped me of my livelihood, my ability to support myself and to be independent,” Hively said. “I have worked hard my whole life, and I would have to say that a lot of my sense of self-worth is wrapped around a job, and how well I can do at a job. They took that away as well.”

During the hourlong hearing Wednesday, Greg Nevins, a Lambda Legal attorney who represented Hively pro bono, argued that discriminating against one’s sex and discriminating against one’s sexual orientation are the same thing. He asked judges to interpret the law in a broader sense than how it was written half a century ago.


To support his case, Nevins cited a 1989 Supreme Court case, Price Waterhouse v. Hopkins, that held Title VII covers discrimination based on not conforming to gender norms.

“You can’t discriminate against a woman because she has a Harley or has tattoos or has Bears tickets, but you are told you can fire her because she is lesbian,” he said.

John Maley, who represented Ivy Tech, told judges that Congress must address the statute if it needs to change and not the courts — an idea some of the judges rejected.

“The starting point is, of course, the language of the statute,” Maley argued. “Sex means man or woman.”


Chief Judge Diane Wood quipped back, “Well, we’re here to reconsider that.”

She and other judges struggled to differentiate between discrimination that stems from sex versus sexuality.

The animated discussion, which sometimes elicited laughter from a packed courtroom, spanned philosophical debate over a “third sex” to the role of genetics.

Wood posited that sexual orientation is also connected to the penultimate gender stereotype: a man is attracted to a woman and vice versa. If that perceived norm is broken, she said, it could trigger backlash.


Addressing Maley directly, Wood said she found it “odd” that he was before her at all.

“Your brief says ... Ivy Tech deplores sexual orientation discrimination, but we’re going to defend our right to do it anyway,” she said.

College spokesman Jeff Fanter said Wednesday in an email that Ivy Tech is prepared to defend its termination of Hively even if sexual orientation discrimination is found to be prohibited by existing law.

Ivy Tech didn’t fire Hively for her sexual orientation, Fanter said, but he did not explain the circumstances of her dismissal.


The U.S. Equal Employment Opportunity Commission filed a brief in support of Hively and also addressed the judges Wednesday.

Attorney Gail Coleman of the commission said the agency is involved because it is pushing for a more precise understanding of the term “sex” in the federal statute. The commission has supported a liberal interpretation of the statute to include sexual orientation and spearheaded litigation on the matter, according to Commissioner Chai Feldblum.

“If this employee’s sex were different, would the employer object to their relationship with this other person?” Coleman posed to the court. “If this employee were a man with a picture of his wife on his desk, would that be OK whereas if this employee were a woman with a picture with her wife, that’s not OK? That is solely because of her sex. If her sex was different, she would be treated differently?”

Coleman also drew on precedent from Loving V. Virginia, a case that found state bans on interracial marriage unconstitutional, and a number of judges agreed that its reasoning seemed analogous.


Judge Richard Posner said the Loving case is a perfect example of how laws enacted for one purpose may be interpreted in a different vein.

“Who’s going to be hurt if the lesbians and homosexuals get a little more protection at work?” he said.

Hively filed her lawsuit in federal court, in part, because Indiana does not have a state law protecting LGBT workers. Illinois, which enacted a statue in 2006, and Wisconsin are among 22 states with anti-discrimination laws for sexual orientation, though not all include gender identity.

Several cases dealing with this question are pending countrywide, including two in New York and one in Georgia, according to Lambda Legal. Arguments for those cases are set for December and January.


A ruling handed down by a lower court in Pennsylvania recently held that sexual orientation discrimination falls under the Civil Rights Act, according to Anthony Kreis, a professor at Chicago-Kent College of Law who studies LGBT rights. Hively’s case, however, has the potential for greater impact because lower courts would adhere to its ruling.

The 7th Circuit panel took the case under advisement and did not set a date for issuing its ruling. But even if they rule in her favor, Hively’s case is just beginning. In order to prove the school discriminated against her, Hively first needs to convince the judges she has a legal basis to move forward.

“My biggest thing has always been that what they did was just unfair,” she said. “They literally could have rendered me homeless in a very significant way, and I don’t think people should be able to do that.”

echerney@chicagotribune.com


Twitter @Elyssacherney