Madeline Buckley, and Amy Bartner

IndyStar

A South Bend woman who accused Ivy Tech Community College of discrimination has lost her case because federal law offers no recourse for those who say they are discriminated at work because of sexual orientation.

On Thursday, a panel of judges with the U.S. Court of Appeals for the 7th Circuit in Chicago upheld a lower court's dismissal of the suit filed by Kimberly Hively, a former part-time Ivy Tech instructor who said the college did not hire her for full-time employment because she is a lesbian. Ivy Tech denied the allegation.

The ruling highlights a gap in federal civil rights protections in the workplace: Employees are protected from discrimination based on race, sex, religion, color and national origin, but not sexual orientation.

While dismissing the case, the judges criticized the fact that sexual orientation is not included in workplace protections guaranteed under Title VII of the Civil Rights Act of 1964. The judges said that change must come from a ruling from the Supreme Court of the United States or new legislation from Congress.

"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.

In Indiana, a bill that sought to add sexual orientation to the state's civil rights protections failed earlier this year.

Sen Travis Holdman, R-Markle, the author of the bill, declined to comment on Thursday's ruling without first seeing the order. Regardless, he said, Indiana remains where it was when his bill died in February.

"We're still up against the same issue of gay rights, which we attempted to get resolved in this last legislative session," Holdman said. "We'll have to see where that takes us from here."

Hively began teaching as a part-time instructor at Ivy Tech in 2000. She sued the institution in August 2014, alleging that administrators turned her down for each of the six full-time positions she applied to between 2009 and 2014 because of her sexual orientation. She said she had never received a negative evaluation.

She filed an appeal after a federal judge in Indiana dismissed the case, ruling that her claim did not fall under the Civil Rights Act, an argument Ivy Tech made in its response to the lawsuit.

In a statement to IndyStar, Ivy Tech spokesman Jeff Fanter denied the allegation and said the college values diversity and forbids discrimination based on sexual orientation.

"Ivy Tech Community College ... is an equal opportunity employer that does not condone, and in fact explicitly prohibits, employment discrimination based upon a person’s sexual orientation," Fanter said in the statement. "Ivy Tech recognizes the importance of this issue and will continue to conduct its operations in a manner that is consistent with its statement of values and its policies prohibiting discrimination."

The court's opinion noted an ironic tension with the landmark 2015 Supreme Court decision in the case of Obergefell v. Hodges, which legalized same-sex marriage. That decision did not address workplace discrimination.

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"The cases as they stand do, however, create a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act," the opinion reads.

The judges also make note of an exception to the exclusion of sexual orientation from Title VII protections. In past cases, courts have found that discrimination against someone for not conforming to gender norms falls under sex discrimination. That means, for example, the opinion says, a gay man could win a discrimination case by alleging he was discriminated against for being perceived to have stereotypical feminine mannerisms.

If Hively decides she wants to continue moving forward with the case, she could appeal to the Supreme Court or ask the full 7th Circuit court to hear the case or both.

Hively's attorney, Greg Nevins, said she is still considering her options.

"Obviously she is disappointed with the result," said Nevins, a lawyer with Lambda Legal, an organization that works for the civil rights of the LGBT community.

Individual setbacks, although unfortunate, are part of any marginalized group gaining equality, said Indy Pride President Jason Hinson-Nolen.

"When you get rulings like this, you can look at this and say it's disappointing, or you can look at it and say it’s hopeful," he said. "This opens the door for that and allows the conversation to continue. Sometimes those small steps of disappointment lead us to somewhere that is groundbreaking and to equality across the board."

Freedom Indiana Campaign Manager Chris Paulsen said Thursday's ruling wasn't surprising.

"It really highlights why we need protections that explicitly cover sexual orientation and gender identity," Paulsen said. "There have been rulings that go both directions. Different people have to interpret laws differently.

"It's something that the Supreme Court will have to decide eventually."

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

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