What appeared to be a slow but inexorable trend toward the federal courts of appeals finally recognizing that Title VII’s prohibition of discrimination “because of sex”1 includes sexual orientation discrimination appeared to be undermined by the recent U.S. Court of Appeals for the Seventh Circuit decision in Hively v. Ivy Tech Community College, 830 F.3d 698 (7th Cir. 2016). A number of recent federal district court decisions,2 in addition to the Equal Employment Opportunity Commission’s groundbreaking 2015 decision in Baldwin v. Dept. of Transportation3—finding that sexual orientation discrimination is sex discrimination—suggested to some a potential shift in the federal courts’ longstanding insistence that Title VII does not recognize claims for sexual orientation discrimination.
The facts in Hively are straightforward: Kimberly Hively had been a part-time adjunct professor at a community college for a number of years, and during a five-year period applied for six full-time faculty positions. Although she was well qualified, the college refused to interview her for any of the position openings. Her part-time employment contract was then not renewed in 2014. Hively asserted that the college’s failure to promote her and termination decision were motivated by the fact that she is a lesbian and that its actions violated Title VII.
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