Kimberly Hively, of South Bend, IN, claims that her employer, Ivy Tech Community College, did not hire her on to full-time status because she is a lesbian. But now a federal court is saying that Hively's claim doesn't matter because that's not illegal.
In a decision upholding the lower court's ruling, the Seventh Circuit appeals court dismissed Hively's lawsuit, ruling that sexual orientation is not a protected class under the Civil Rights Act, and that employment discrimination against LGBTQ people is legal.
Ivy Tech Community College denies that it discriminated against Hively, with a spokesman telling the Indianapolis Star it has policy prohibiting employment discrimination on the basis of sexual orientation.
Title VII of the 1964 law makes it illegal to discriminate on the basis of "race, sex, religion, color and national origin." The Equal Employment Opportunity Commission, which enforces Title VII, has previously stated it believes the "sex" portion of the law includes both sexual orientation and gender identity. But since there is no explicit protection for LGBTQ people in the statute, there is room for interpretation, as the court showed in its ruling.
In its opinion, the panel of judges stated they were bound to respect precedent in previous rulings made on the subject, which has held that sexual orientation is not covered by the law. But the ruling is more complicated than it seems. The judges made clear that they were not happy to be handing down such a ruling:
Perhaps the writing is on the wall. 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.
They also said that either new laws from Congress or new guidance from the Supreme Court was required to resolve the issue—a statement that could possibly spur a new round of entreaties to the highest court in the country.
The court is right that lawmakers in 1964 were obviously not very concerned with protecting LGTBQ people's jobs. That civil rights lawyers have to go back to 1964 to build their cases is the result of Congress's inaction. The Employment Non-Discrimination Act was approved by the Senate in 2013, but never came to a vote in the House, and The Equality Act, introduced last year, has never made it out of committee. As for state protections, this is Mike Pence's Indiana we're talking about. It is not one of the handful of states with civil rights protection for sexual orientation.