LGBT Bias Ruling Likely Not Court’s Last Word in Case

Bloomberg BNA — Kevin McGowan
03.15.2017

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Federal civil rights law doesn’t prohibit employment discrimination against gay and lesbian workers, a federal appeals court in Atlanta ruled. The decision is another step in a legal journey that could end at the U.S. Supreme Court ( Evans v. Ga. Reg’l Hosp. , 2017 BL 75949, 11th Cir., No. 15-15234, 3/10/17 ).

There’s “a good probability” the full Eleventh Circuit will take up the case, said J. Randall Coffey, a partner with Fisher & Phillips LLP in Kansas City, Mo., who represents employers. And it “seems inevitable” the issue will “eventually wend its way” to the Supreme Court, Coffey told Bloomberg BNA March 13.

The U.S. Court of Appeals for the Eleventh Circuit said in a 2-1 ruling that its prior decisions foreclosed the argument that bias based on a worker’s homosexuality necessarily is sex discrimination under Title VII of the 1964 Civil Rights Act.

The March 10 decision rejected the position of the Equal Employment Opportunity Commission, which backed lesbian security guard Jameka Evans’ contention that her hospital employer violated Title VII.

The three-judge panel’s decision “almost certainly” will be reviewed by the full Eleventh Circuit, said P. David Lopez, a former EEOC general counsel who’s now a partner at Outten & Golden LLP in Washington.

The ruling “certainly has all the hallmarks” of a case the full Eleventh Circuit should review, said Greg Nevins, a senior attorney with Lambda Legal Education and Defense Fund in Atlanta who represented Evans.

Whether Title VII bans bias based on sexual orientation is “an important issue” the panel’s decision “set up well” for review by the full court, Nevins told Bloomberg BNA March 13.

Two other federal appeals courts currently also are considering if Title VII’s ban on sex bias necessarily prohibits discrimination against lesbian and gay workers.

The full U.S. Court of Appeals for the Seventh Circuit heard oral argument Nov. 30 on a lesbian community college instructor’s Title VII claim that she was denied promotion and ultimately fired because of her sexual orientation.

The U.S. Court of Appeals for the Second Circuit heard argument Jan. 20 on a gay male employee’s Title VII discrimination and harassment claims based on sexual orientation.

Decisions in those cases probably will be handed down later this year.

Battle Over Gender Stereotyping Scope

No federal appeals court yet has ruled that Title VII’s ban on sex discrimination prohibits bias based on sexual orientation.

But some appeals courts, including the Eleventh Circuit, have said a 1989 U.S. Supreme Court decision that bias based on gender stereotyping can violate Title VII can protect LGBT workers.

Such workers must prove an employer discriminated because they didn’t conform to gender norms about how a man or woman should speak, act, dress or otherwise behave.

The Eleventh Circuit panel opinion provides “a nice springboard” for review of the Title VII issue by the full court, Lopez told Bloomberg BNA March 13.

The majority opinion by Judge Jose E. Martinez rejected the argument that Title VII on its face prohibits bias based on a lesbian worker’s sexual orientation as a form of sex discrimination.

But Martinez said a federal district court on remand must give Evans a chance to amend her complaint to state a Title VII claim based on the gender stereotyping theory.

Judge Robin S. Rosenbaum in dissent said it’s “utter fiction to suggest” Evans wasn’t discriminated against for “failing to comport with her employer’s stereotyped view of women.”

Any lesbian worker who alleges an employer discriminated because of her sexual orientation essentially is claiming the employer discriminated because she’s attracted to women and therefore doesn’t conform to gender stereotypes, Rosenbaum wrote.

Rosenbaum’s “robust dissent” is “very strong” and “on the mark,” said Lopez, who worked on the EEOC’s amicus brief for Evans before leaving the agency in December 2016.

The “time has come” for all federal appeals courts that have ruled Title VII doesn’t cover sexual orientation bias to re-examine their precedents, Lopez said.

In a concurring opinion, Judge William H. Pryor said the Supreme Court’s precedent on gender stereotyping can’t be stretched to find Title VII protects all gay and lesbian workers.

Congress, not the courts, should decide if Title VII reaches that far, Pryor said.

It’s an important point because Price Waterhouse v. Hopkins said only that gender stereotyping can be “evidence” of discrimination, Coffey told Bloomberg BNA. It didn’t create a new protected class of people based on gender stereotyping, he said.

Pryor’s opinion said the sexual sterotyping theory involves whether a person’s “behavior” conformed to an employer’s gender norms, not a person’s “status” as heterosexual or homosexual.

The full Eleventh Circuit will have to clarify how broadly the sexual stereotyping theory sweeps, Coffey said.

Courts Showing Strong Interest

The Eleventh Circuit’s “splintered opinions” show there’s “no principled or coherent way” to distinguish between bias based on sex and discrimination based on sexual orientation, said Shannon Minter, legal director for the National Center for Lesbian Rights in San Francisco.

“When an employer targets a worker for being gay or lesbian, the employer necessarily takes the person’s sex into account, which Title VII prohibits,” Minters said in a March 13 email to Bloomberg BNA.

The Eleventh Circuit’s division over the proper Title VII analysis shows “courts are finally starting to take these claims seriously,” Minter said. Courts “recognize that older decisions simply dismissing them out of hand are troubling and unpersuasive,” he said.

The Supreme Court will likely be final decision-maker on this Title VII issue, Minter said.

“In the long run, I’m optimistic that the courts will reach the right result, recognizing that Title VII prohibits sexual orientation discrimination, because there is no principled argument on the other side,” he said.

To contact the reporter on this story: Kevin McGowan at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

For More Information

Text of the opinion is available at http://www.bloomberglaw.com/public/document/Evans_v_Ga_Regl_Hosp_No_1515234_2017_BL_75949_11th_Cir_Mar_10_201.

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.