Eleventh Circuit Rules Title VII Does Not Prohibit Discrimination Based on Sexual Orientation

By Karen L. Piper

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of race, color, religion, sex and national origin. On March 10, 2017, the U. S. Court of Appeals for the Eleventh Circuit (which covers Alabama, Florida and Georgia) issued an opinion ruling that Title VII does not prohibit employers from discriminating against employees on the basis of the employee’s sexual orientation. Evans v. Georgia Regional Hospital.

This case involved Jameka Evans, a gay woman, who worked for the hospital as a security officer. While Evans did not openly broadcast her sexual orientation, she asserted that it was “evident” that she identified with the male gender because she presented herself wearing a male uniform, having a male haircut, and wearing men’s shoes. She left the hospital voluntarily after 14 months.

Evans claimed that during her employment at the hospital, she was denied equal pay or work, harassed, and physically assaulted or battered. She further claimed that a less qualified individual was appointed to be her direct supervisor. When Evans complained about these violations to Human Resources, she was asked about her sexuality. This caused Evans to infer that her sexuality was the basis for the harassment. Evans also claimed sex discrimination because she did not comport with her manager’s gender stereotypes.

Evans filed a complaint with the EEOC (Equal Employment Opportunity Commission) and a subsequent lawsuit claiming that the hospital violated Title VII by discriminating against her on the basis of sex because of both her sexual orientation and her gender non-conformity. Evans represented herself, after the court denied her request for appointment of counsel.

The district court denied both claims. The court observed that every federal appeals court faced with the issue had decided that Title VII does not prohibit discrimination based on sexual orientation. The court also posited that Evans’ claim of discrimination based on gender non-conformity was “just another way to claim discrimination based on a sexual orientation” and dismissed this claim. Evans appealed.

The Eleventh Circuit Court of Appeals affirmed dismissal of Evans’ claim of discrimination on the basis of her sexual orientation.  Based on case law from all circuits that had addressed the issue, Title VII was “not intended to cover discrimination against homosexuals.” Several of these cases were written before the U.S. Supreme Court recognized same-sex marriage in Obergefell v. Hodges (2015).

The Eleventh Circuit recognized that discrimination based on failure to conform to a gender stereotype is prohibited sex-based discrimination as the U.S. Supreme Court had ruled in 1989 in Price Waterhouse v. Hopkins. In Price Waterhouse, a female accountant was denied partnership because she did not match the stereotypes of how a woman should look and act. Price was described as abrasive, brusque, and macho, and the employer complained that she should have walked, talked, and dressed more femininely. The Supreme Court ruled that Price Waterhouse had violated Title VII because an employer is prohibited from evaluating employees by assuming or insisting that they match the gender stereotype associated with their gender. While recognizing that gender non-conformity is a valid legal theory, the Eleventh Circuit agreed that Evans had not provided sufficient facts to show that gender non-conformity led to adverse employment action. The court granted Evans the opportunity to amend her complaint to support this claim.

Some of the U. S. appeals courts, most notably the Seventh Circuit (covering Illinois, Indiana, and Wisconsin) appear to be open to reconsidering local precedents ruling that sexual orientation is not protected. A three-judge panel of the Seventh Circuit affirmed dismissal of a sexual orientation claim based on local precedent in Hively v. Ivy Tech Community College, South Bend (July 28, 2016). In its opinion, the district court noted that the U. S. Supreme Court decisions recognizing same-sex marriage “create a paradoxical legal landscape in which a person can be married on Saturday and then fired on Monday for just that act.” The employee asked the full court to review the decision. The full court agreed and vacated its July 28, 2016 decision. (October 11, 2016). Oral argument was held before the full court on November 30, 2016. The parties are waiting for a decision.

The EEOC still holds the position that Title VII prohibits discrimination on the basis of sexual orientation. The EEOC also posits that a homosexual individual necessarily fails to conform to gender stereotypes because the stereotype is that individuals should be attracted to persons of the opposite sex. The EEOC’s position could change after President Trump fills an existing vacancy among the EEOC Commissioners and a vacancy that will occur on July 1, 2017 when Commissioner Jenny Yang’s term expires. For now, it is best to check with experienced employment counsel, such as the author, when dealing with a situation in which such a claim could become an issue.

This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of Bodman PLC, which represents employers, only, in Workplace Law. Ms. Piper can be reached at Bodman’s Troy office at (248) 743-6025 or kpiper@bodmanlaw.com. For further information, go to: http://www.bodmanlaw.com/attorneys/karen-l-piper.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information are included in the re-post of the article. March 2017.