Earlier this year, we reported on the Eleventh Circuit’s decision in Evans v. Georgia Regional Hospital affirming the dismissal of a former security guard’s claims that her employer had discriminated against her because she is a lesbian and did not conform to gender stereotypes. This Monday, December 11, 2017, the U.S. Supreme Court declined to review the Eleventh Circuit’s ruling in Evans, leaving unanswered the question of whether Title VII covers sexual orientation discrimination.
Plaintiff Jameka Evans, who is a lesbian, worked at an Atlanta regional hospital as a security officer. She was open about her sexual orientation with her coworkers and dressed in a masculine manner, wearing the men’s security guard uniform, men’s shoes, and a short haircut. According to Evans’s complaint, the hospital discriminated against her because of her sexual orientation and nonconformity with gender stereotypes by denying her equal pay, harassing her, physically assaulting her, and targeting her for termination, then retaliated against her after she complained about the discriminatory treatment.
Evans brought sex and sexual orientation discrimination claims in the U.S. District Court for the Southern District of Georgia under Title VII, which is a federal statute that protects employees against discrimination on the basis of sex, race, color, national origin, and religion. The district court dismissed Evans’s sexual orientation discrimination claim, holding that Title VII “was not intended to cover discrimination against homosexuals,” and Evans appealed the ruling to the Eleventh Circuit.
In March 2017, the Eleventh Circuit affirmed the lower court’s dismissal, finding that Evans’s claim was precluded because binding precedent held that sexual orientation discrimination is not actionable under Title VII. Evans then asked the U.S. Supreme Court to review the Eleventh Circuit’s ruling and address the question of “[w]hether the prohibition in Title VII of the Civil Rights Act of 1964 against employment discrimination ‘because of…sex’ encompasses discrimination based on an individual’s sexual orientation.”
On its face, Title VII does not prohibit sexual orientation–based discrimination, and courts routinely dismiss such claims. However, in recent years, several executive agencies and circuit courts have diverged from this interpretation, resulting in widespread uncertainty about the viability of Title VII sexual orientation discrimination claims. In the executive branch, the Equal Employment Opportunity Commission—the entity responsible for interpreting and enforcing Title VII—interprets Title VII to prohibit discrimination on the basis of sexual orientation, while the Department of Justice disagrees. In the courts, meanwhile, a number of recent lawsuits have challenged the longstanding precedent preventing workers from pursuing sexual orientation discrimination claims under Title VII. Some of these cases, including Evans, have been dismissed, but this spring, the Seventh Circuit became the first circuit court to recognize sexual orientation discrimination under Title VII, and the Second Circuit—which has jurisdiction over New York State—is currently considering the issue in Zarda v. Altitude Express, on which it has yet to rule. As a result, Title VII’s protections may vary greatly depending on which interpretation a judicial body follows.
The Supreme Court’s refusal to review Evans means that, for now, employees have no definitive federal-level recourse for sexual orientation discrimination in the workplace, and the uncertainty about Title VII’s applicability to sexual orientation discrimination claims will remain for the time being. Greg Nevins of Lambda Legal, who represents Evans, expressed frustration with the Court’s decision, stating, “By declining to hear this case, the Supreme Court is delaying the inevitable and leaving a split in the circuits that will cause confusion across the country.”
That said, the Supreme Court’s decision not to review Evans says nothing about the merits of the case or the question of whether Title VII covers sexual orientation discrimination—only that the Court will not address the question as raised in this particular case. It is highly likely that the Supreme Court will address the issue at a future date; as Nevins pointed out in the same statement, the Court’s decision is “not a ‘no’ but a ‘not yet.’” In the meantime, the issue will continue to play out in the executive agencies and circuit courts.
In New York, the New York State Human Rights Law and New York City Human Rights Law protect workers against discrimination based on their sexual orientation. If your employer has discriminated against you based on your sexual orientation, contact The Harman Firm, LLP.