The United States Supreme Court has denied certiorari in the case of Evans v. Georgia Regional Hospital, in effect leaving in place an Eleventh Circuit ruling that Title VII of the Civil Rights Act of 1964 does not cover discrimination based upon sexual orientation.
Jameka Evans, a former security officer at Georgia Regional Hospital, brought suit alleging discrimination for gender non-conformity, sexual orientation discrimination, and retaliation. The district court dismissed all her claims. On appeal, the Eleventh Circuit acknowledged that Evans, a gay woman, was denied equal pay or work and harassed, but affirmed the dismissal of her sexual orientation claim, citing binding precedent from the 1979 case of Blum v. Gulf Oil Corp.
However, while the lower court had called the gender non-conformity claim "just another way to claim discrimination based on sexual orientation," the appellate court disagreed. It held that discrimination based on failure to conform to a gender stereotype is sex-based discrimination, which is expressly permitted under Title VII. The case now goes back to district court, where Evans will likely amend her complaint to flesh out this cause of action.
As we previously discussed here, the Obama administration EEOC filed its first two sexual orientation suits under Title VII in March of 2016. One of the suits, against Pallet Companies, settled in July of 2016. Just last month, a federal judge ordered Scott Medical Health Center to pay $55,500 over harassment of a gay employee in the second suit. Meanwhile, the Trump Justice Department (contrary to the EEOC's position) argued in a case before the Second Circuit that Title VII does not include sexual orientation discrimination. The Circuit Courts are split on the issue and will remain so until the Supreme Court weighs in. Adding to the confusion is a patchwork of state and local laws governing sexual orientation discrimination. In light of this situation, employers should continue to enforce policies that protect LGBTQ workers.
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