1. Do you understand why the college would not hire Kimberly Hively? Explain
2. Do you understand the court’s reasoning for the decision?
3. What would you have done had you been the college administrator who was faced with this decision? Explain.

Facts: An openly lesbian professor began teaching as an adjunct at the college in 2000. She applied for at least six full-time positions between 2009 and 2014. In 2014, her part-time contract was not renewed. She believed her rejection and non-renewal was because of her sexual orientation, so she filed a claim with EEOC. Due to the importance of the issue and understanding that the full court had the power to overrule earlier decisions, the full court decided to hear the case en banc. The court took its mission as one of statutory interpretation rather than re-writing legislation. That is, to determine whether discriminating on the basis of sex under Title VII includes actions taken on the basis of sexual orientation.

Decision: The en banc court determined that discrimination on the basis of sexual orientation violated Title VII’s prohibition against gender discrimination.  The court said the decision must be understood against the backdrop of the Supreme Court decisions in Oncale outlawing same-gender discrimination, in Price Waterhouse outlawing gender stereotyping, and in the broader reach of sexual orientation cases, such as Romer, outlawing Colorado’s attempt to forbid any government entity from taking action to protect LGBT individuals.