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Hively v. Ivy Tech Community College

United States Court of Appeals, Seventh Circuit

July 28, 2016

KIMBERLY HIVELY, Plaintiff-Appellant,
Ivy Tech Community College, South Bend, Defendant-Appellee.

          Argued September 30, 2015

         Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:14-cv-1791 - Rudy Lozano, Judge.

          Before Bauer, Ripple, and Rovner, Circuit Judges.


         Once again this court is asked to consider whether Title VII of the Civil Rights Act of 1964 protects employees from or offers redress for discrimination based on sexual orientation. This time, however, we do so in the shadow of a criticism from the Equal Employment Opportunity Commission (EEOC) that this court and others have continued to reflexively declare that sexual orientation is not cognizable under Title VII without due analysis or consideration of intervening case law. The EEOC's criticism has created a groundswell of questions about the rationale for denying sexual orientation claims while allowing nearly indistinguishable gender non-conformity claims, which courts have long recognized as a form of sex-based discrimination under Title VII. After a careful analysis of our precedent, however, this court must conclude that Kimberly Hively has failed to state a claim under Title VII for sex discrimination; her claim is solely for sexual orientation discrimination which is beyond the scope of the statute. Consequently, we affirm the decision of the district court.


         Hively began teaching as a part-time adjunct professor at Ivy Tech Community College in 2000. On December 13, 2013, she filed a bare bones pro se charge with the Equal Employment Opportunity Commission (EEOC) claiming that she had been "discriminated against on the basis of sexual orientation" as she had been "blocked from fulltime [sic] employment without just cause, " in violation of Title VII. (Short Appendix to Appellant's Brief, 5). After exhausting the procedural requirements in the EEOC, she filed a complaint, again pro se, in the district court alleging that although she had the necessary qualifications for full-time employment and had never received a negative evaluation, the college refused even to interview her for any of the six full-time positions for which she applied between 2009 and 2014, and her part-time employment contract was not renewed in July 2014. In short, she alleged that she had been "[d]enied full time employment and promotions based on sexual orientation" in violation of Title VII, 42 U.S.C. §§ 2000e et seq.

         The college's defense in both the district court and on appeal is simply that Title VII does not apply to claims of sexual orientation discrimination and therefore Hively has made a claim for which there is no legal remedy. The district court agreed and granted Ivy Tech's motion to dismiss. Hively v. Ivy Tech Cmty. Coll., No. 3:14-CV-1791, 2015 WL 926015, at *1 (N.D. Ind. Mar. 3, 2015).



         This panel could make short shrift of its task and affirm the district court opinion by referencing two cases (released two months apart), in which this court held that Title VII offers no protection from nor remedies for sexual orientation discrimination. Hamner v. St. Vincent Hosp. & Health Care Ctr., Inc., 224 F.3d 701, 704 (7th Cir. 2000); Spearman v. Ford Motor Co., 231 F.3d 1080, 1085 (7th Cir. 2000). Title VII makes it "unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual ... because of such individual's race, color, religion, sex, or national origin" 42 U.S.C. § 2000e-2. This circuit, however, in both Hamner and Spearman, made clear that "harassment based solely upon a person's sexual preference or orientation (and not on one's sex) is not an unlawful employment practice under Title VII." Hamner, 224 F.3d at 704; Spearman, 231 F.3d at 1084 (same). Both Hamner and Spearman relied upon our 1984 holding in Wane v. Eastern Airlines, Inc., 742 F.2d 1081 (7th Cir. 1984) in which this court, while considering the Title VII claim of a transsexual airline pilot, stated in dicta that "homosexuals and transvestites do not enjoy Title VII protection." Id. at 1084. In Ulane, we came to this conclusion by considering the ordinary meaning of the word "sex" in Title VII, as enacted by Congress, and by determining that "[t]he phrase in Title VII prohibiting discrimination based on sex, in its plain meaning, implies that it is unlawful to discriminate against women because they are women and against men because they are men." Id. at 1085. We also considered the legislative history of Title VII, explaining that it was primarily meant to remedy racial discrimination, with sex discrimination thrown in at the final hour in an attempt to thwart adoption of the Civil Rights Act as a whole. Id. Therefore, we concluded, "Congress had a narrow view of sex in mind when it passed the Civil Rights Act." Id. at 1086. In a later case describing Ulane, we said that at the time of Ulane "we were confident that Congress had nothing more than the traditional notion of 'sex' in mind when it voted to outlaw sex discrimination, and that discrimination on the basis of sexual orientation and transsexualism, for example, did not fall within the purview of Title VII." Doe by Doe v. City of Belleville, III, 119 F.3d 563, 572 (7th Cir. 1997) (citing Ulane, 742 F.2d at 1085-86), abrogated by Oncale v. Sundowner Offshore Sews., Inc., 523 U.S. 75 (1998).[1]

         Since Hamner and Spearman, our circuit has, without exception, relied on those precedents to hold that the Title VII prohibition on discrimination based on "sex" extends only to discrimination based on a person's gender, and not that aimed at a person's sexual orientation. Muhammad v. Caterpillar, Inc., 767 F.3d 694, 697 (7th Cir. 2014) (citing the holding in Spearman, 231 F.3d at 1085); Hamm v. Weyauwega Milk Products, Inc., 332 F.3d 1058, 1062 (7th Cir. 2003) ("The protections of Title VII have not been extended, however, to permit claims of harassment based on an individual's sexual orientation."); Schroeder v. Hamilton Sch. Dist., 282 F.3d 946, 951 (7th Cir. 2002) ("Title VII does not, however, provide for a private right of action based on sexual orientation discrimination.").

         The district court, relying on Hamner and two district court cases, thus dismissed Hively's complaint with prejudice. Hively, 2015 WL 926015, at *3 (citing Hamner, 224 F.3d at 704 ("harassment based solely upon a person's sexual preference or orientation ... is not an unlawful employment practice under Title VII."); Wright v. Porters Restoration, Inc., No. 2:09-CV-163-PRC, 2010 WL 2559877, at *4 (N.D. Ind. June 23, 2010) ("To the extent the Plaintiff may be alleging discrimination based on sexual orientation, the Seventh Circuit has unequivocally held that this type of discrimination is not, under any circumstances, proscribed by Title VII."); and Hamzah v. Woodmans Food Mkt. Inc., No. 13-CV-491-WMC, 2014 WL 1207428, at *2 (W.D. Wis. Mar. 24, 2014) ("[t]o the extent [plaintiff] claims harassment due to his heterosexuality-that is, his sexual orientation, not his sex-he cannot bring a Title VII claim against [the defendant] for these alleged instances of harassment, and the court will dismiss that claim with prejudice.")).

         We are presumptively bound by our own precedent in Hamner, Spearman, Muhammad, Hamm, Schroeder, and Wane. "Principles of stare decisis require that we give considerable weight to prior decisions of this court unless and until they have been overruled or undermined by the decisions of a higher court, or other supervening developments, such as a statutory overruling." Santos v. United States, 461 F.3d 886, 891 (7th Cir. 2006). Our precedent has been unequivocal in holding that Title VII does not redress sexual orientation discrimination. That holding is in line with all other circuit courts to have decided or opined about the matter. See e.g., Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006) (perceived sexual orientation and sexual harassment claim); Medina v. Income Support Div., New Mexico, 413 F.3d 1131, 1135 (10th Cir. 2005); Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 261 (3d Cir. 2001); Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999); Hopkins v. Bait. Gas & Elec. Co., 77 F.3d 745, 751-52 (4th Cir. 1996) (noting in a case of same-sex harassment that Title VII does not protect against discrimination based on sexual orientation); U.S. Dep't of Hous. & Urban Dev. v. Fed. Labor Relations Auth., 964 F.2d 1, 2 (D.C. Cir. 1992) (assuming without deciding that Title VII does not cover sexual orientation discrimination); Williamson v. A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989); Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979); but see Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1068 (9th Cir. 2002) (gay male employee taunted and harassed by coworkers for having feminine traits successfully pleaded claim of sex harassment under Title VII).

         Our holdings and those of other courts reflect the fact that despite multiple efforts, Congress has repeatedly rejected legislation that would have extended Title VII to cover sexual orientation.[2] Moreover, Congress has not acted to amend Title VII even in the face of an abundance of judicial opinions recognizing an emerging consensus that sexual orientation in the workplace can no longer be tolerated. See, e.g., Vickers, 453 F.3d at 764-65 ("While the harassment alleged by [the plaintiff] reflects conduct that is socially unacceptable and repugnant to workplace standards of proper treatment and civility, [the plaintiff's] claim does not fit within the prohibitions of the law); Bibby, 260 F.3d at 265 ("Harassment on the basis of sexual orientation has no place in our society. Congress has not yet seen fit, however, to provide protection against such harassment."); Simonton, 232 F.3d at 35 (harassment on the basis of sexual orientation "is morally reprehensible whenever and in whatever context it occurs, particularly in the modern workplace" but "Congress's refusal to expand the reach of Title VII is strong evidence of congressional intent in the face of consistent judicial decisions refusing to interpret "sex" to include sexual orientation."); Hig-gins, 194 F.3d at 259 (harassment because of sexual orientation "is a noxious practice, deserving of censure and opprobrium" but not proscribed by Title VII); Rene, 243 F.3d at 1209, (Hug, J., dissenting) (same); Kay v. Indep. Blue Cross, 142 F.App'x 48, 51 (3d Cir. 2005) (finding sexual orientation discrimination to be "reprehensible" but not actionable under Title VII); Silva v. Sifflard, No. 99-1499, 2000 WL 525573, *1 (1st Cir. Apr. 24, 2000) ("Although we do not condone harassment on the basis of perceived sexual orientation, it is not, without more, actionable under Title VII."); Christiansen v. Omnicom Grip., Inc., No. 15 CIV. 3440, 2016 WL 951581, at *12 (S.D.N.Y. Mar. 9, 2016) (finding the conduct "reprehensible, " but not cognizable under Title VII). See also Ulane, 742 F.2d at 1084 ("While we do not condone discrimination in any form, we are constrained to hold that Title VII does not protect transsexuals, and that the district court's order on this count therefore must be reversed for lack of jurisdiction."). In short, Congress' failure to act to amend Title VII to include sexual orientation is not from want of knowledge of the problem. And as a result, our understanding in Ulane that Congress intended a very narrow reading of the term "sex" when it passed Title VII of the Civil Rights Act, so far, appears to be correct.

         To overcome a motion to dismiss, Hively's complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In this case, Hively fails to thwart the motion to dismiss for the simple reason that this circuit has undeniably declared that claims for sexual orientation are not cognizable under Title VII. Nor are they, without more, cognizable as claims for sex discrimination under the same statute.


         We could end the discussion there, but we would be remiss not to consider the EEOC's recent decision in which it concluded that "sexual orientation is inherently a 'sex-based consideration/ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII." Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641, at *5, *10 guly 16, 2015). The EEOC, the body charged with enforcing Title VII, came to this conclusion for three primary reasons. First, it concluded that "sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee's sex." Id. at ""5 (proffering the example of a woman who is suspended for placing a photo of her female spouse on her desk, and a man who faces no consequences for the same act). Second, it explained that "sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex, " in which an employer discriminates against lesbian, gay, or bisexual employees based on who they date or marry. Id. at *6-7. Finally, the EEOC described sexual orientation discrimination as a form of discrimination based on gender stereotypes in which employees are harassed or punished for failing to live up to societal norms about appropriate masculine and feminine behaviors, mannerisms, and appearances. Id. In coming to these conclusions, the EEOC noted critically that "courts have attempted to distinguish discrimination based on sexual orientation from discrimination based on sex, even while noting that the "borders [between the two classes] are ... imprecise." Id. at ""8 (quoting Simon-ton, 232 F.3d at 35). The EEOC rejected the argument that the plain language of Title VII, along with Congressional inaction, mandated a conclusion that Title VII does not prohibit such discrimination. Instead, the EEOC noted that even the Supreme Court, when applying Title VII's prohibition on "sex" discrimination to same-sex sexual harassment, stated that "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." Oncale, 523 U.S. at 79.

         This July 2015 EEOC decision is significant in several ways. It marks the first time that the EEOC has issued a ruling stating that claims for sexual orientation discrimination are indeed cognizable under Title VII as a form of sex discrimination. Although the holding in Baldwin applies only to federal government employees, its reasoning would be applicable in private employment contexts too. And although the rulings of the EEOC are not binding on this court, they are entitled to some level of deference. Griggs v. Duke Power Co., 401 U.S. 424, 433-34 (1971); Gibson v. Brown, 137 F.3d 992, 995-96 (7th Cir. 1998), vacated, W. v. Gibson, 527 U.S. 212 (1999). Based on our holding today, which is counter to the EEOC's holding in Baldwin, we need not delve into a discussion of the level of deference we owe to the EEOC's rulings. Whatever deference we might owe to the EEOC's adjudications, we conclude for the reasons that follow, that Title VII, as it stands, does not reach discrimination based on sexual orientation. Although we affirm our prior precedents on this point, we do so acknowledging that other federal courts are taking heed of the reasoning behind the EEOC decision in Baldwin. As we will discuss further below, the district courts, which are the front line experimenters in the laboratories of difficult legal questions, are beginning to question the doctrinaire distinction between gender non-conformity discrimination and sexual orientation discrimination and coming up short on rational answers.

         In the process of concluding, after thorough analysis, that allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex, the EEOC criticized courts-and pointed particularly to this circuit-that "simply cite earlier and dated decisions without any additional analysis" even in light of the relevant intervening Supreme Court law. Baldwin, 2015 WL 4397641, at ""8 n.11.We take to heart the EEOC's criticism of our circuit's lack of recent analysis on the issue. Moreover, recent legal developments and changing workplace norms require a fresh look at the issue of sexual orientation discrimination under Title VII. We begin, therefore, with that intervening Supreme Court case- Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) -and discuss its implication for distinguishing between gender non-conformity claims, which are cognizable under Title VII, and sexual orientation claims, which are not. See Hamm, 332 F.3d at 1065 n.5.


         As far back as 1989, the Supreme Court declared that Title VII protects employees who fail to comply with typical gender stereotypes. Price Waterhouse, 490 at 251. In Price Wa-terhouse, when Ann Hopkins failed to make partner in the defendant accounting firm, the partners conducting her review advised her that her chances could be improved the next time around if she would, among other gender-based suggestions, "walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry." Id. at 235. The Supreme Court declared that this type of gender stereotyping constituted discrimination on the basis of sex in violation of Title VII, stating,

[a]s for the legal relevance of sex stereotyping, we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire ...

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