On March 10, 2017, the 11th Circuit Court of Appeals, which hears appeals from the federal district courts in Alabama, Florida, and Georgia, held that Title VII of the Civil Rights Act of 1964 does not prohibit discrimination on the basis of sexual orientation.
In Evans v. Georgia Regional Hospital, the plaintiff, Jameka Evans, alleged that she was terminated because she was a lesbian and did not conform to gender norms. She asserted claims for discrimination on the basis of gender non-conformity and sexual orientation. The Court dismissed the latter, noting that it was bound by a 1979 case, Blum v. Gulf Oil Corp., which held that Title VII did not prohibit “discharge for homosexuality.”
Judge William Pryor, who many will recall was considered by President Donald Trump to fill the late-Justice Antonin Scalia’s seat on the U.S. Supreme Court, stated in a concurring opinion that Congress, not the Courts, should designate sexual orientation as a protected class under Title VII, just as race, sex, gender, and national origin are explicitly protected.
In contrast, Judge Robin Rosenbaum, in her dissent, stated that sexual orientation already is protected by Title VII’s prohibition against sex discrimination. “[W]hen a woman alleges … that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer’s image of what women should be–specifically, that women should be sexually attracted to men only.”
Judge Rosenbaum’s position closely aligns with the position the EEOC has taken since 2015, and that other federal district courts around the country have taken in denying motions to dismiss sexual-orientation discrimination claims under Title VII.
We anticipate that Ms. Evans will file a motion to have her appeal heard by the entire 11th Circuit and that, at some point in the very near future, this issue will make its way to the Supreme Court.