## Facts

- Kimberly Hively, an openly lesbian adjunct professor at Ivy Tech Community College’s South Bend campus, taught part-time beginning in 2000.
- Between 2009 and 2014, she applied for at least six full-time positions at the college and was not selected.
- In July 2014, Ivy Tech did not renew her adjunct contract.
- Hively filed an EEOC charge alleging she was blocked from full-time employment and discriminated against because of her sexual orientation in violation of Title VII.

## Issues

1. Whether discrimination based on sexual orientation constitutes discrimination “because of … sex” under Title VII, 42 U.S.C. § 2000e-2(a).
2. Whether prior circuit precedent excluding sexual-orientation claims from Title VII should be overruled in light of intervening Supreme Court sex-discrimination doctrine.

## Decision

- The en banc Seventh Circuit reversed the district court’s dismissal and remanded for further proceedings.
- The court held that discrimination on the basis of sexual orientation is a form of sex discrimination prohibited by Title VII.
- The court overruled prior Seventh Circuit decisions that had held sexual orientation was not protected by Title VII, including *Hamner*, *Spearman*, and *Hamm*.

## Legal Principles

- Title VII’s ban on discrimination “because of … sex” covers adverse actions that would not have occurred but for the employee’s sex, applying a comparative counterfactual inquiry.
- Discrimination against a person for being in a same-sex relationship necessarily considers the employee’s sex relative to the sex of the employee’s partner and thus is sex-based.
- Sexual-orientation discrimination is tied to impermissible sex stereotypes, including expectations about whom men and women should be attracted to, and can fall within Title VII’s sex-stereotyping doctrine.
- Discrimination based on the protected characteristic of a person with whom the employee associates can constitute discrimination against the employee because of the employee’s own protected trait; by analogy, penalizing an employee based on the sex of the employee’s partner is discrimination because of sex.
- A statutory application not contemplated by the enacting Congress may still be required when consistent with the statute’s text as interpreted through later, controlling doctrinal developments.

## Conclusion

The Seventh Circuit held that Title VII’s prohibition on discrimination “because of sex” encompasses discrimination based on sexual orientation, reversed the dismissal of Hively’s Title VII claim, and remanded while repudiating earlier circuit precedent to the contrary.


Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc)