Employment Law Daily SCOTUS formally asked to decide if Title VII protects against sexual orientation discrimination
Monday, September 18, 2017

SCOTUS formally asked to decide if Title VII protects against sexual orientation discrimination

By Pamela Wolf, J.D.

As promised, Lambda Legal is taking the case of a Savannah, Georgia, security guard, who alleges she was harassed at work and forced from her job because she is a lesbian, to the Supreme Court to determine whether Title VII affords her any relief. The petition for certiorari in Evans v. Georgia Regional Hospital (No. 17-370) asks the Justices to rule that sexual orientation discrimination violates Title VII of the Civil Rights Act, thus resolving a circuit split on the question. Moreover, two federal agencies, the EEOC and the Department of Justice, 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.

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.

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. In a partial dissent and separate concurrence, the judges staged a robust debate about the relationship between sexual orientation as a status and gender nonconformity as a behavior.

Lambda Legal 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 Seventh Circuit, the full Eleventh Circuit declined to rehear the case on July 6.

“Ours is a national economy, and basic protections in the workforce should not depend on geography,” according to the petition for certiorari. “More fundamentally, lesbian, gay, and bisexual Americans will not enjoy true legal equality until their sexual orientation is irrelevant not only to their right to enter into consenting relationships and to marry but also to their ability to maintain jobs and pursue their livelihoods. It cannot be that Title VII allows an employer to fire [the employee] for exercising her constitutional right to marry her girlfriend while retaining her co-worker [] after he marries his.”

“It’s time for LGBT people everywhere to be protected against employment discrimination, said Greg Nevins, Employment Fairness Project Director for Lambda Legal. “The ability to put a roof over your head and feed your family is one of the most basic needs, and freedom from discrimination is an essential part of that. We need the highest court in the land to review this case, consider the vital rights at stake, and settle the issue once and for all to ensure that getting or keeping a job shouldn’t depend on your sexual orientation.”

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