Appeals Court Rules Sexual Orientation Discrimination Is Not Prohibited


Allen Smith, J.D. By Allen Smith, J.D. March 17, 2017
Appeals Court Rules Sexual Orientation Discrimination Is Not Prohibited

​An appeals court recently excluded sexual orientation discrimination from protection under Title VII of the Civil Rights Act of 1964, but employers should continue to investigate and not tolerate such discrimination, employment attorneys say. HR also should retain sexual orientation as a protected status under company harassment and equal employment opportunity policies. Pending court decisions may change the federal courts' history of ruling this way, attorneys said.

Appeals Courts Split?

The appeals court's decision isn't the final word in this area, according to Michelle Phillips, an attorney with Jackson Lewis in White Plains, N.Y., who noted that the Equal Employment Opportunity Commission (EEOC) continues to take the position that sexual orientation discrimination is a form of gender discrimination. "As a result, employers must be aware that sexual orientation claims will continue to be filed with and litigated by the EEOC against employers," she said. In addition, many state and municipality laws prohibit sexual orientation discrimination. Federal contractors also are prohibited from such discrimination, a ban that President Donald Trump has announced Jan. 31 will remain in place.

A panel of the 11th U.S. Circuit Court of Appeals decided on March 10 that Title VII doesn't cover sexual orientation discrimination (Evans v. Georgia Regional Hospital, 15-15234)). The 2nd Circuit and 7th Circuit have pending appeals involving sexual orientation claims. And the 11th Circuit decision will be appealed to the full 11th Circuit, announced Lambda Legal, which is representing the plaintiff, on March 10.

Jeffrey Arnold, an attorney with McDermott, Will & Emery in Chicago, noted that no appeals court has yet identified sexual orientation as a specific protected class under Title VII.

But a split among the appeals courts may emerge, which could lead to the Supreme Court resolving the question, said Sam Schwartz-Fenwick, an attorney with Seyfarth Shaw in Chicago.

"Federal courts have by an overwhelming margin refused to apply Title VII to claims of sexual orientation discrimination," he noted. "However, there is a great deal of pressure on federal courts to revisit this issue, in light of the increasing disconnect between societal acceptance of LGBT [lesbian, gay, bisexual and transgender] individuals and Congress' refusal to pass a nondiscrimination law that expressly covers LGBT individuals. This pressure has only grown since the EEOC's issuance of Baldwin v. Foxx, EEOC Appeal No. 2012-24738-FAA-03 (July 15, 2015), a decision that articulated the commission's relatively new stance that Title VII prohibits sexual orientation discrimination.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

While the 11th Circuit decision is in line with most courts' holdings, Phillips observed that some district courts have reached the opposite conclusion.

No Title VII Claim

In the 11th Circuit case, Jameka Evans, a lesbian security guard, appealed the dismissal of her suit against her former employer, Georgia Regional Hospital in Savannah, Ga. Evans claimed that in her roughly one year at the hospital she was denied equal pay or work, harassed, and physically assaulted or battered. She alleged she was discriminated against by a number of managers and supervisors for failing to act in a traditional womanly manner. She wore a male uniform and had a stereotypically male haircut.

She alleged her employer's conduct was sex discrimination under Title VII, both due to her sexual orientation and her gender nonconformity. The magistrate judge disagreed. It recommended that the complaint be dismissed, finding claims of sexual orientation discrimination to not be actionable under Title VII. The magistrate judge likewise found that a claim of gender nonconformity was not viable in this instance, saying it was another way to allege a claim of sexual orientation discrimination. The district court adopted this recommendation and dismissed the case.

On appeal, the 11th Circuit majority, in a 2-1 ruling, found that Evans could not state a claim for discrimination under Title VII. The appeals court reasoned that under controlling 11th Circuit case law, Title VII does not extend to claims of sexual orientation discrimination. The majority held that it was bound to follow this precedent.

The majority stated that while Title VII allows claims for discrimination based on gender nonconformity, the complaint did not contain sufficient facts to suggest that she suffered adverse employment action based on her "decision to present herself in a masculine manner." The majority vacated and sent the nonconformity claim back to the district court, with instructions to allow Evans to amend her complaint.

Vigorous Dissent

In her dissent, Justice Robin Rosenbaum stated: "There is no way to draw a line between sexual orientation discrimination and discrimination based on gender nonconformity, because not being straight is gender-nonconforming, period."

When a woman alleges, as Evans has, that she was 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. … And it is utter fiction to suggest that Evans was not discriminated against for failing to comport with her employer's stereotyped view of women."

District Court Decisions

Some district courts have agreed with the dissent:

--Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212 (D. Ore. 2002).

--Terveer v. Billington, 34 F. Supp. 3d 100 (D.D.C. 2014).

--Hall v. BNSF Ry. Co., No. 13-2160 (W.D. Wash. 2014).

--Isaacs v. Felder, 2015 WL 6560655 (M.D. Ala. 2015).

--Videckis v. Pepperdine University, 2015 WL 8916764 (C.D.  Cal. 2015).

--Boutillier v. Hartford Public Schs., No. 3:13-cv-01303 (D. Conn. 2016).

--Winstead v. Lafayette Cty. Bd. Of Cty. Comm'rs, 2016 WL 3440601 (N.D. Fla. 2016).

--EEOC v. Scott Medical Health Center, 2:16cv-00225-CB (W.D. Pa. 2016).

"Given the current state of the law and the unlikelihood that the Equality Act will pass under the current composition of Congress, employers should await decisions from the pending circuit court of appeals decisions," Phillips said. The Equality Act would, according to the Human Rights Campaign, provide anti-discrimination protections for LGBT people in employment, housing, credit, education, public spaces and services, federally funded programs, and jury service.


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