LegalReader.com  ·  Legal News, Analysis, & Commentary

News & Politics

Teacher’s Case May Redefine LGBTQ Workplace Rights


— January 3, 2017

We’ve all done it at one point or another in our lives: we’re in the car with our significant other and, before we exit to go to work, we kiss that special someone good-bye. In most cases, such a thing would likely not draw any attention. Sadly, this was not the case for Kimberly Hively in 2009. Her case, which could make its way to the U.S. Supreme Court, may redefine LGBTQ workplace rights.


We’ve all done it at one point or another in our lives: we’re in the car with our significant other and, before we exit to go to work, we kiss that special someone good-bye. In most cases, such a thing would likely not draw any attention. Sadly, this was not the case for Kimberly Hively in 2009. Her case, which could make its way to the U.S. Supreme Court, may redefine LGBTQ workplace rights.

On that fateful day in 2009, Ms. Hively kissed her girlfriend good-bye in the parking lot of Ivy Tech Community College in Indiana where she worked as an adjunct professor. Allegedly, one of the college’s administrator’s informed Ms. Hively that “sucking face” was unprofessional behavior.

According to Ms. Hively, the way she was treated by the college changed after this incident. After several unsuccessful attempts at gaining a full-time position, the college terminated her employment in 2014. This was a terrible setback for her as she wasn’t able to find another teaching position and had to return to school to become certified to teach high school. A year after her termination, she was able to find a new job teaching high school math.

Ms. Hively, 50, originally sued Ivy Tech in federal court in the Northern District of Indiana. The suit was brought in August 2017 by Ms. Hively herself because she couldn’t find a lawyer in Indiana will to take her case. That suit was dismissed in March 2015 after the court found that Ms. Hively did not state her claim under Title VII of the Civil Rights Act. The Act forbids workplace discrimination based on gender, but does not explicitly mention sexual orientation. A three-judge panel of 7th U.S. Circuit Court of Appeals upheld the dismissal in July. However, in October the full 12-judge court voted to vacate its earlier decision and rehear Ms. Hively’s case.

Whatever thought prompted them to change their mind was still running strong during the new hearing last month. Ivy Tech’s counsel, John Maley, continuously argued that “sex” covers only gender under the Civil Rights Act of 1964, but many of the judges weren’t buying it and interrupted the lawyer’s argument. These judges even indicated that they’re ready to bring the Act into the 21st century by expanding it to include sexual orientation, thus protecting LGBTQ individuals in the workplace nationwide.

Litigators involved in Hively v. Ivy Tech. David Lopez, EEOC general counsel; Gail Coleman, EEOC attorney; Gregory Nevins, counsel for the Southern Regional Office of Lambda Legal; and Chai Feldblum, EEOC commissioner; image courtesy of www.slate.com.
Litigators involved in Hively v. Ivy Tech. David Lopez, EEOC general counsel; Gail Coleman, EEOC attorney; Gregory Nevins, counsel for the Southern Regional Office of Lambda Legal; and Chai Feldblum, EEOC commissioner; image courtesy of www.slate.com.

Gregory Nevins of the Southern Regional Office of Lambda Legal cited a SCOTUS case from 1989, Price Waterhouse v. Hopkins, in which the Court held that Title VII forbids discrimination based on lack of conformance to gender norms. As example, Mr. Nevins said, “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.”

The Equal Employment Opportunity Commission (EEOC) interpreted Title VII as forbidding discrimination based on sexual orientation in its 2015 decision in Baldwin v. Foxx. In that instance, David Baldwin, a gay man working in an air traffic control tower, was passed over for a permanent position and subjected to anti-gay comments from his supervisor.

The EEOC got involved in Ms. Hively’s case, filing a brief in support of her as well as addressing the court. The Agency would like to see the confusion over the term “sex” cleared up, according to EEOC attorney Gail Coleman. EEOC Commissioner Chai Feldblum added that the EEOC supports the inclusion of LGBTQ people in Title VII’s protections.

When Ms. Coleman addressed the court, she asked, “If this employee’s sex were different, would the employer object to their relationship with this other person? 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?”

Of course, no one can really think of the expansion of civil rights into the modern age without the landmark case Loving v. Virginia coming to mind. This case, decided in 1967, did away with state bans on interracial marriage. Ms. Coleman brought up Loving in her comments, which met with approval from some of the judges as they found the issue at hand to be very similar to that presented in Loving.

One judge, Richard Posner, went so far as to call Loving the perfect example of how laws, and the interpretation thereof, can evolve over time. When faced with Mr. Maley’s repeated arguments against including LGBTQ individuals in Title VII’s protections, Judge Posner asked, “Who will be hurt if gays and lesbians have a little more job protection?”

When Mr. Maley failed to provide an adequate answer, saying that he couldn’t think of anyone who would be harmed, Judge Posner asked, “So, what’s the big deal? … Are we bound by what people thought in 1964?”

If one were to go by Loving, the answer would be a resounding, “NO!” Of course, there are other, more recent cases, such as Obergefell v. Hodges, decided in 2015. That SCOTUS case made it legal for LGBTQ individuals to marry each other, a decided evolution both societally and legally.

It remains to be seen what will happen in Ms. Hively’s case. The 7th Circuit has not set a date for its decision yet. Not to mention the fact that it is a U.S. appellate court, which means that Ivy Tech could (and most likely will) appeal to the SCOTUS if the court decides in Ms. Hively’s favor. If it does rule in her favor, it will be the first of the U.S. appellate courts to expand Title VII’s protections to include LGBTQ individuals.

A spokesperson for Ivy Tech told the Chicago Tribune that the college did not terminate Ms. Hively due to her sexual orientation. However, the spokesperson did not specify the “real” reason for the college’s actions.

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

I wholeheartedly concur with Ms. Hively. The laws protecting LGBTQ citizens need to be expanded. We are your doctors, your lawyers, your mechanics, your teachers, your neighbors and friends and family. And yes, we also write legal commentary, some of us. Yet, in many states, we can lose our jobs simply for existing.

According to an article in Fast Company magazine early in 2016, there are still 28 states in the nation where it is perfectly legal to fire someone solely based on their sexual orientation. Twenty-eight states! Unacceptable. If you’re interested in finding out where your state stands on the issue, there is an interactive map included in the article.

It’s time for change. It’s time for all citizens of this country to have the same protections. I hope that the 7th Circuit, and eventually SCOTUS, sees the issue the same way.

Sources:

This Woman’s Court Case Could Secure LGBT Rights in the Workplace

Court Case Could Secure LGBT Rights In The Workplace

In case involving Indiana teacher, judges consider workplace protections for LGBT community

The 7th Circuit Likely to Rule Anti-Gay Employment Discrimination Is Illegal

Join the conversation!