Full Court of Appeals for the 7th Circuit Hears Sexual Orientation Discrimination Case Today

By Adam Polaski • November 30, 2016 • 11:53 am

Today, November 30, Lambda Legal and their client Kimberly Hively will see their case, Hively v. Ivy Tech Community College, heard en banc by the 7th Circuit Court of Appeals, which has jurisdiction over Indiana, Wisconsin, and Illinois. The case was previously heard by a 3-judge panel and is now being reheard by the full court of appeals.


The case argues, as many courts have ruled in the past, that existing federal laws prohibiting employment discrimination based on sex also extend to discrimination based on sexual orientation. Title VII of the 1964 Civil Rights Act prohibits employers from discriminating against people based on their sex – and many litigators over the course of many years have successfully argued that this also protects LGBT people from employment discrimination. Federal appellate courts have thus far been reluctant to rule this way – but this case before the 7th Circuit could change that.

Lambda Legal explained this week in a Q&A with Gregory Nevins:

Kim Hively taught at Ivy Tech Community College in South Bend, Indiana, for years and years, and was continually denied promotions and eventually forced out, because she’s a lesbian. She filed a charge with the Equal Employment Opportunity Commission (EEOC), and brought a lawsuit in the Northern District of Indiana. The judge there did what the judge had to do. There was existing Seventh Circuit precedent, and he said he was sympathetic to the situation, but he had to dismiss the case.

That’s when Lambda Legal got involved. We filed an appeal. I argued the case before a three-judge panel of the Seventh Circuit on September 30, 2015. Ten months later, the decision came down from the panel, saying essentially, “We agree with you, but we ruled the other way 15 years ago, and we’re sticking with it.” The opinion was very thoughtful and talked about a lot of the ways in which the courts seem to have gotten it wrong. And that was a powerful impetus for us to ask the entire Court to rehear the case [known as a rehearing en banc].

The circuit courts are right underneath the Supreme Court. To say the circuit courts do not like to rehear a case en banc is an understatement. It’s like being struck by lightning. But this is a very compelling case. And on October 11, they granted a rehearing en banc, and I will be arguing that case before 11 judges in Chicago on November 30. It’s a really big chance. If they were to rule in our favor on this, it would be a big game changer.

Read the full Q&A here.

Freedom for All Americans cheers on Kim Lively and Lambda Legal in their efforts today.

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