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Appeals court: U.S. law doesn't cover sexual orientation bias

July 29, 2016

A federal appeals court has upheld the dismissal of a lesbian's lawsuit against Ivy Tech Community College because federal law does not protect people who claim workplace discrimination because of sexual orientation.

A three-judge panel of 7th U.S. Circuit Court of Appeals upheld a lower court's dismissal of a complaint filed by Kimberly Hively of South Bend, a former part-time instructor who said the college did not hire her full-time because she is a lesbian.

However, the ruling issued Thursday criticized the lack of sexual orientation in workplace protections guaranteed under Title VII of the Civil Rights Act of 1964, The Indianapolis Star reported.

"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," the 42-page opinion said.

The judges said that change must come from a U.S. Supreme Court ruling or a new federal law.

The opinion noted an ironic tension with the landmark 2015 Supreme Court decision that legalized same-sex marriage. That decision did not address workplace discrimination.

"The cases as they stand do, however, create a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act," the opinion said.

Hively began teaching part-time at Ivy Tech in 2000. She sued the school in August 2014, alleging they turned her down for each of the six full-time positions she had applied for since 2009 because of her sexual orientation. She said she had never received a negative evaluation.

If Hively decides she wants to continue pursuing the case, she could appeal to the Supreme Court and or ask the full 7th Circuit court to hear the case.

Her attorney, Greg Nevins, said she is still weighing her options.

"Obviously she is disappointed with the result," said Nevins, a lawyer with Lambda Legal, an organization that works for the civil rights of the lesbian, gay, bisexual and transgender community.

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