Employment Law Daily Dissent says en banc CA-11 should review Title VII sexual orientation case, not cling to ‘39-year-old precedent’
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Monday, July 23, 2018

Dissent says en banc CA-11 should review Title VII sexual orientation case, not cling to ‘39-year-old precedent’

By Lorene D. Park, J.D.

In a case alleging sexual orientation discrimination against a county employee, Eleventh Circuit Judge Rosenbaum, joined by Circuit Judge Pryor, dissented from the decision to deny rehearing en banc of a panel decision affirming dismissal. Emphasizing the number of people affected by the issue and the importance of giving it full review, Rosenbaum expressed disappointment that the Eleventh Circuit instead chose to rely on “39-year-old precedent” that she asserted was the equivalent of “an Edsel with a missing engine” and was abrogated by the Supreme Court in Price Waterhouse (Bostock v. Clayton County Board of Commissioners, July 18, 2018, Rosenbaum, dissenting).

The employee, who is gay, worked for the county as a child welfare services coordinator in the Juvenile Court. For over ten years he received good performance reviews and accolades, but this changed after he became involved with a gay recreational softball league in January 2013. He alleged that his participation in the league and sexual orientation were openly criticized, he was subjected to an internal audit, and he was ultimately terminated because of his sexual orientation and identity. The employee’s subsequent Title VII suit was dismissed, and he appealed.

Panel decision. With little review of the background facts other than to say that the employee alleged that the county discriminated against him based on his sexual orientation, a panel of the Eleventh Circuit, in a three-page decision, affirmed dismissal of his Title VII claims. The panel explained that it was foreclosed by the Circuit’s divided 2017 ruling in Evans v. Georgia Regional Hospital that Title VII’s prohibition against discrimination “because of sex” does not encompass discrimination based on sexual orientation. The panel explained that “under our prior panel precedent rule, we cannot overrule a prior panel’s holding, regardless of whether we think it was wrong, unless an intervening Supreme Court or Eleventh Circuit en banc decision is issued.” The appeals court also found that the employee had abandoned a challenge to his gender stereotyping claim by not raising it on appeal.

In one succinct paragraph, the Eleventh Circuit denied rehearing en banc.

Dissent: This case is “indisputedly en-banc-worthy.” Judge Rosenbaum, joined by Judge Pryor, took the time to explain why this case should be reheard en banc: “The issue this case raises—whether Title VII protects gay and lesbian individuals from discrimination because their sexual preferences do not conform to their employers’ views of whom individuals of their respective genders should love—is indisputedly en-banc-worthy.” For one thing, she noted, both the Second and Seventh Circuits addressed the issue en banc in the past 15 months, and “that’s really saying something,” because the Second Circuit decided only two cases en banc (including Zarda ) of more than 24,000 appeals that terminated in that period. Likewise, noted Rosenbaum, in the past five years the Seventh Circuit appears to have decided only 16 cases en banc, including Hively, of the more than 15,000 appeals that Circuit terminated in that time.

Moreover, Rosenbaum explained, “In 2011, about 8 million Americans identified as lesbian, gay, or bisexual. Of those who so identify, roughly 25% report experiencing workplace discrimination because their sexual preferences do not match their employers’ expectations.” In her view, “That’s a whole lot of people potentially affected by this issue.”

Clinging to precedent that should be overruled. “Yet rather than address this objectively en-banc-worthy issue, we instead cling to a 39-year-old precedent that was decided ten years before Price Waterhouse v. Hopkins, the Supreme Court precedent that governs the issue and requires us to reach the opposite conclusion of Blum,” Rosenbaum admonished.

She referred to a 1979 Fifth Circuit decision, Blum v. Gulf Oil Corp., which she noted involved a “conclusory” analysis consisting of a single sentence: “Discharge for homosexuality is not prohibited by Title VII.” (The panel decision noted that all decisions of the “old Fifth” Circuit handed down prior to the close of business on September 30, 1981, were binding in the Eleventh Circuit, which confirmed in Evans that Blum remained binding precedent.).

Noting she had previously explained that Price Waterhouse abrogated Blum and requires ruling that Title VII prohibits sexual orientation discrimination, Judge Rosenbaum said “I cannot explain why a majority of our Court is content to rely on the precedential equivalent of an Edsel with a missing engine, when it comes to an issue that affects so many people,” but “regardless of whatever a majority of this Court’s views may turn out to be on the substantive issue that Bostock raises, we have an obligation to, as a Court, at least subject the issue to the ‘crucial’ ‘crucible of adversarial testing.’” She therefore dissented from the denial of en banc review.

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