11th Circuit Joins Others in Holding Sexual Orientation Discrimination Not Covered by Title VII
Joining nearly all other federal circuit courts, the U.S. Court of Appeals for the Eleventh Circuit has held that Title VII does not cover discrimination based on sexual orientation. Evans v. Georgia Regional Hospital, 2017 WL 943925 (11th Cir. March 10, 2017). While closing the door on Title VII sexual orientation discrimination claims, the court re-affirmed that other theories of sex discrimination, such as gender non-conformity and same-sex discrimination, remain actionable.
Jameka Evans, who is a lesbian, was a security guard at Georgia Regional Hospital. Evans alleged that she was denied equal pay and work, harassed, and physically assaulted. According to Evans, it was evident that she identified with the male gender due to such things as her wearing a male uniform, haircut and shoes. Furthermore, she claims she was subjected to a hostile work environment because her status as a gay female did not comport with her superiors’ gender stereotypes. According to Evans, she had doors closed on her, she was subjected to scheduling problems and shift changes, and her work equipment was tampered with. She also claimed a less qualified employee was promoted to become her supervisor, who then also began to harass her. Evans eventually resigned.
Evans filed suit against the hospital and others, claiming she was discriminated against based on her sexual orientation and gender non-conformity, and retaliated against after she complained. Her claims were initially addressed by a magistrate judge. With respect to Evans’s claim of discrimination based on her sexual orientation (her status as a gay female), the magistrate judge determined that Title VII “was not intended to cover discrimination against homosexuals.” The magistrate judge further concluded that her gender non-conformity claim was “just another way to claim discrimination based on sexual orientation,” no matter how it was titled, and thus that claim too was barred. The magistrate judge also recommended dismissal of the retaliation claim; because sexual orientation discrimination is not prohibited under Title VII, Evans did not allege opposition to an unlawful employment practice when she complained. Over Evans’ objection, the district court adopted the magistrate’s recommendation in full and dismissed the case.
Evans appealed to the Eleventh Circuit. The court first held that Evans’ gender non-conformity claim should not have been dismissed. A gender non-conformity claim is not “just another way to claim discrimination based on sexual orientation,” according to the court, but rather is a separate cause of action available under Title VII. Although Evans’ complaint did not plead facts sufficient to suggest that her decision to present herself in a masculine manner led to any adverse employment actions, the court allowed Evans to amend her complaint to try to sufficiently plead these facts.
The court next addressed the sexual orientation discrimination claim. Citing legal precedent, the court held that Title VII does not permit such a claim: “[W]e are bound to follow a binding precedent in this Circuit unless and until it is overruled by this court en banc or by the Supreme Court.” Evans argued that the U.S. Supreme Court has already held that both same-sex discrimination claims, and gender non-conformity discrimination claims, are allowed under Title VII, and that these decisions should also include within their purview sexual orientation-based claims. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). The Eleventh Circuit did not agree, finding that those Supreme Court decisions were not sufficiently on-point to interfere with established legal precedent. In doing so, the court’s opinion notes the decisions from all other federal circuits (except D.C.) holding that sexual orientation discrimination is not actionable under Title VII. While the law in the D.C. Circuit is less clear, indications can be found in earlier decisions that the court is trending in the same direction.
The near-unanimous exclusion of sexual orientation protection under federal law may or may not be significant for employers, depending on the jurisdiction. Initially, as noted in this case, non-traditional sex discrimination theories can overlap making it difficult to decipher, certainly at the management and human resources level, what type of conduct may or may not be prohibited under federal law. Moreover, in many states, sexual orientation discrimination is expressly prohibited at the state and local level, and employers in these jurisdictions can face similar or even greater legal penalties than under federal law. Thus, the practical effect of the roadblock under Title VII may be a rise in state court claims in some states by employees seeking to bring sexual orientation-based claims. For all these reasons, the sensible approach from both a legal and personnel perspective is to continue to strive for respect and fairness for all employees.