Title VII

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7^th Circuit Court of Appeals

Case Name: Kimberly Hively v. Ivy Tech Community College, South Bend

Case No.: 15-1720

Officials: BAUER, RIPPLE, and ROVNER, Circuit Judges.

Focus: Title VII

Court holds that Title VII does not offer redress for discrimination based on sexual orientation despite EEOC criticism.

“Because we recognize that Title VII in its current iteration does not recognize any claims for sexual orientation discrimination, this court must continue to extricate the gender non‐ conformity claims from the sexual orientation claims. We recognize that doing so creates an uncomfortable result in which the more visibly and stereotypically gay or lesbian a plaintiff is in mannerisms, appearance, and behavior, and the more the plaintiff exhibits those behaviors and manner‐ isms at work, the more likely a court is to recognize a claim of gender non‐conformity which will be cognizable under Title VII as sex discrimination. See, e.g., Rene, 305 F.3d at 1068 (gay male employee taunted and harassed by co‐workers for having feminine traits successfully pleaded claim of sex dis‐ crimination under Title VII); Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864, 874‐75 (9th Cir. 2001) (noting that the abuse directed at plaintiff reflected a belief that he did not act as a man should act—he had feminine mannerisms, did not have sex with a female friend, and did not otherwise conform to gender‐based stereotypes—and thus the discrimination was closely linked to gender and therefore actionable under Title VII); Reed v. S. Bend Nights, Inc., 128 F. Supp. 3d 996, 1001 (E.D. Mich. 2015) (lesbian employee “put forth sufficient evidence in support of her allegation that she was dis‐ criminated against because she did not conform to tradition‐ al gender stereotypes in terms of her appearance, behavior, or mannerisms at work,” where her supervisor testified that she “dressed more like a male” and her “’demeanor’ was a ‘little more mannish.’”); Koren v. Ohio Bell Tel. Co., 894 F. Supp. 2d 1032, 1038 (N.D. Ohio 2012) (gay man alleged sufficient facts to support a claim of sex discrimination based on his failure to comply with gender norms where he changed his last name to his husband’s and his employer re‐ fused to call him by his new name); Centola, 183 F. Supp. 2d at 410 (concluding that plaintiff’s coworkers must have surmised that the plaintiff was gay because they found him to be effeminate); Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1217‐20 (D. Or. 2002) (holding that a jury could find that the employer repeatedly harassed, and ultimately discharged, the plaintiff because she did not con‐ form to the employer’s stereotype of how a woman ought to behave, both because she dated other women and because she wore male‐styled clothing).”

Affirmed

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.