The decision, which sends the case back to Indiana’s federal district court, involved Indiana teacher Kimberly Hively, who claimed her employer denied her promotions and let her go from her job at Ivy Tech Community College in South Bend, Indiana, because she is a lesbian. After staff members saw her kissing her girlfriend goodbye in the school parking lot, an administrator reprimanded her for “sucking face” and “unprofessionalism.”
From Judge Diane P. Wood writing for the majority:
… Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual. Our panel described the line between a gender nonconformity claim and one based on sexual orientation as gossamer-thin; we conclude that it does not exist at all. Hively’s claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman (or in some cases, for a man).
Greg Nevins, Employment Fairness Program Director for Lambda Legal, praised the decision.
“In many cities and states across the country, lesbian and gay workers are being fired because of who they love. But, with this decision, federal law is catching up to public opinion: ninety-percent of Americans already believe that LGBT employees should be valued for how well they do their jobs—not who they love or who they are. Now, through this case and others, that principle is backed up by the courts,” he said. “This decision is gamechanger for lesbian and gay employees facing discrimination in the workplace and sends a clear message to employers: it is against the law to discriminate on the basis of sexual orientation.”
Hively, who now works as a high school math teacher, also weighed in.
“It’s really good to know that it’s making some headway,” she said. “I always thought there was a big disconnect when they legalized gay marriage but didn’t extend any protections against workplace or housing discrimination. What they’re doing is allowing people to lose jobs and homes just because they fell in love.”
Ivy Tech spokesman Jeff Fanter said the college will not seek further Supreme Court review. He said Ivy Tech “denies that it discriminated against the plaintiff on the basis of her sex or sexual orientation and will defend the plaintiff’s claims on the merits in the trial court.”
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