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Justices won’t review Evans, Title VII sexual orientation claim of Georgia hospital security guard

By Joy P. Waltemath, J.D. and Pamela Wolf, J.D.

It was not a surprise to many court watchers that on December 11, the U.S. Supreme Court refused to consider the case of a Savannah, Georgia, security guard, who alleged she was harassed at work and forced from her job because she is a lesbian. The petition for certiorari in Evans v. Georgia Regional Hospital (No. 17-370) asked the Justices to rule that sexual orientation discrimination violates Title VII of the Civil Rights Act, thus resolving a circuit split on the question. The EEOC and the Department of Justice also have taken opposite positions on whether sexual orientation discrimination is sex discrimination, with the EEOC contending that it is and the DOJ contending that it is not.

Eleventh Circuit. In Evans, a divided Eleventh Circuit ruled that Title VII’s prohibition against discrimination “because of sex” does not encompass discrimination based on sexual orientation. However, the court also held that the security guard may be able to assert a claim based on a gender nonconformity theory, just as a heterosexual employee would, and so remanded the case. Some experts suggest that this gave the Supreme Court an “out” influencing its decision to deny review. In a partial dissent and separate concurrence in the Eleventh Circuit’s decision, the judges staged a robust debate about the relationship between sexual orientation as a status and gender nonconformity as a behavior.

Seventh Circuit. In April, a divided Seventh Circuit reconsidered its opinion that sexual orientation discrimination was not barred by Title VII. In Hively v. Ivy Tech Community College of Indiana, the en banc court held that discrimination on the basis of sexual orientation actually is a form of sex discrimination for Title VII purposes.

Second Circuit. In an order issued on May 25, the Second Circuit announced that it would reconsider en banc whether Title VII “prohibits discrimination on the basis of sexual orientation through its prohibition of discrimination ‘because of . . . sex.’” The move followed its April 18 three-judge holding, in Zarda v. Altitude Express dba Skydive Long Island, that circuit precedent precluded the court from extending Title VII protections to a gay skydiving instructor’s claim that he was fired due to his sexual orientation. The full circuit panel held oral argument in September on only the following question: “Does Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sexual orientation through its prohibition of discrimination ‘because of . . . sex’?”

Lambda Legal had asked the whole Eleventh Circuit Court of Appeals to rehear the case so that it could reexamine the 1979 precedent relied upon by the three-judge panel, but unlike the Second and Seventh Circuits, the full Eleventh Circuit declined to rehear the case on July 6.

Lambda Legal response. “By declining to hear this case, the Supreme Court is delaying the inevitable and leaving a split in the circuits that will cause confusion across the country,” said Greg Nevins, Employment Fairness Project Director for Lambda Legal.

“But this was not a ‘no’ but a ‘not yet,’ and rest assured that Lambda Legal will continue the fight, circuit by circuit as necessary, to establish that the Civil Rights Act prohibits sexual orientation discrimination,” Nevins continued. “The vast majority of Americans believe that LGBT people should be treated equally in the workplace. The public is on the right side of history; it’s unfortunate that the Supreme Court has refused to join us today, but we will continue to invite them to do the right thing and end this hurtful balkanization of the right of LGBT people to be out at work.”

The case is No. 17-370.