Hively v. Ivy Tech

Ivy Tech made legal history yesterday, largely by losing a court case in the Federal Circuit Court for the 7th Circuit. In Hively v. Ivy Tech, Ms. Hively, an adjunct (at another campus, as far as I know) claimed that Ivy Tech failed to give her a full-time position because she is a lesbian.

I have not read the briefs in the case. I have worked at Ivy Tech for a few years now, full-time, and I can state that full-time positions are few and far between. It is a common complaint of the faculty that this college relies too much on adjuncts. Even the state agency tasked with overseeing the college has started mumbling something similar.

In any event, Ivy Tech's first line of defense--and correctly, from a legal standpoint--was to deny that there is any right to be free of employment discrimination on the basis of one's sexual orientation.

I say correctly not because I agree, or think that's how it should be, but because if Ivy Tech could prove this, it would be the quickest and most economical way to end the lawsuit. So that's what it did.

And in fact, the district court ruled in Ivy Tech's favor. But on appeal, the 7th Circuit reversed, and said that there is a federal right to be free of employment discrimination on the basis of one's sexual orientation--the first time a federal circuit court has done so.

Ivy Tech announced yesterday that it would not be appealing that order. The case will be remanded for a trial on the merits. As I hinted above, given how rarely anyone gets a full-time position here, I believe Ms. Hively has her work cut out for her. With full-time positions coming up only once in a blue moon, they tend to be very competitive when they arise.

So there's the law part of this entry. Now for the fun part. Judge Richard Posner of the 7th Circuit has a national reputation as an independent thinker, shall we say. He was appointed by Pres. Reagan (a republican, for those of you too young to be sure), but has gradually skewed left of center over time--although there's no telling which way he'll rule on anything. (Interestingly, federal judges, who have lifetime tenures, do have a documented tendency to skew left to some degree after their appointments. Some of our most liberal federal judges were appointed by republican presidents, much to their chagrin. I do not know if anyone has figured out why this is.)

Anyway, Judge Posner wrote a concurring opinion, which was covered by Above the Law, one of the legal blogs I follow. The blog's coverage--and Posner's late-night responses, follow:

Competing with these lines for the most fun part of Judge Posner’s opinion is what I’d describe as a list of his Favorite Gays of All Time (p. 31):

We now understand that homosexual men and women (and also bisexuals, defined as having both homosexual and heterosexual orientations) are normal in the ways that count, and beyond that have made many outstanding intellectual and cultural contributions to society (think for example of Tchaikovsky, Oscar Wilde, Jane Addams, André Gide, Thomas Mann, Marlene Dietrich, Bayard Rustin, Alan Turing, Alec Guinness, Leonard Bernstein, Van Cliburn, and James Baldwin—a very partial list).

A very partial list indeed! Where’s Leonardo da Vinci? Alexander the Great? Elton John? It’s an idiosyncratic collection, to say the least.

UPDATE (11:32 p.m.): Judge Posner’s response: “I think Alexander was bisexual. But yes, Leonardo could have been included. I just reeled off the names that came first to mind.”

UPDATE (11:49 p.m.): Additional comment from Judge Posner: “I’m very embarrassed to have omitted Elton John! I love his music. He’s my favorite popular musician. I can do without Alexander but not without Elton John.”

Now you know what keeps Judge Posner up at night.