In the case that Lambda Legal is now preparing to take to the Supreme Court, the lesbian worker, Jameka Evans, has lost her plea for the U.S. Court of Appeals for the Eleventh Circuit to reconsider its prior precedent against extending Title VII. Last Thursday, that court denied any further review of her case, Evans v. Georgia Regional Hospital.
For LGBT advocates, employment discrimination is one of the greatest civil rights barriers facing the LGBT community. As of now, only the 7th Circuit Court of Appeals and a few federal district courts have found employment discrimination on the basis of sexual orientation to be a violation of Title VII of the Civil Rights Act. Meanwhile, almost every other circuit, as is the case in the most recent 11th Circuit decision, has declined to interpret discrimination based on sexual orientation as sex discrimination.
Evans v. Georgia Reg. Hosp. is the recent 11th Circuit case in which Ms. Evans, a member of the hospital’s security staff, left her job because of the discrimination she faced. Ms. Evans, a gay woman, never made her sexual orientation known to her employer; however, Ms. Evans did present herself as a more masculine female in her dress, hair-style, and demeanor. At work she alleges she was discriminated against because of these features. Ms. Evans claims she was given less desirable work assignments, supervised by less qualified individuals, harassed, physically assaulted, and forced out of her job. When she complained to hospital administration, her sexual orientation was questioned, leading her to believe that her sexual orientation was the motivation for the discrimination.
Ms. Evans, representing herself, eventually filed suit against her employer in federal district court in Georgia. She alleged discrimination on the basis of her failure to comply with traditional gender stereotypes and sexual orientation. She also claimed that her employer retaliated against her for reporting what she thought to be unlawful discriminatory practices. The district court found that discrimination on the basis of sexual orientation was not unlawful and that she failed to allege facts sufficient to establish a claim of gender stereotype-based discrimination.
The District Court dismissed Ms. Evans’ complaint for failure to state a claim without an opportunity to amend the complaint.
The district court further found that Ms. Evans’ claims of sex discrimination based on gender stereotypes was merely another way to characterize discrimination on the basis of sexual orientation, not a separate claim. Finally, because discrimination based on sexual orientation was determined lawful by the district court, and because she failed to properly allege gender stereotype discrimination, Ms. Evans’ retaliation claim failed. The District Court dismissed Ms. Evans’ complaint for failure to state a claim without an opportunity to amend the complaint.
Ms. Evans, now represented by Lambda Legal, an LGBT advocacy group, appealed the dismissal of her complaint to the Court of Appeals for the 11th Circuit. Ms. Evans argued that, especially because she was representing herself at the time, she should have been given the opportunity to amend her complaint prior to dismissal. Further, she argued that an individual who is gay can have a claim for discrimination based on non-conformance to gender stereotypes separate from a claim for discrimination based on sexual orientation. Ms. Evans also argued that the Title VII prohibition on sex discrimination does prohibit discrimination on the basis of sexual orientation.
Ms. Evans’ brief utilized two Supreme Court cases dealing with employment discrimination to support her claim. First, she argued that under Price Waterhouse v. Hopkins, sex discrimination under Title VII includes discrimination based on a failure to conform to gender stereotypes. Ms. Evans noted a female who is attracted to other females does not conform to the gender stereotypes of women’s attractions and typical family structures. Second, she relied on Oncale v. Sundowner Offshore Services, Inc., a case in which sexual harassment between two persons of the same gender was held to be a violation of Title VII, in support of her claim that Title VII prohibits discrimination based on sexual orientation. Finally, she argued that her retaliation claim was improperly dismissed. The Equal Employment Opportunity Commission (EEOC), the federal agency responsible for implementing and enforcing Title VII, along with several advocacy groups also filed a “friend-of-the-court brief” supporting Ms. Evans’ arguments.
Despite her arguments, the Court of Appeals agreed that Title VII did not prohibit discrimination based on sexual orientation and the Court affirmed the dismissal of Ms. Evans’ claim. In reaching this conclusion, the Court cited 11th Circuit precedent in Blum v. Gulf Oil Corp., which held that discrimination based on sexual orientation was not a violation of Title VII. This precedent, according to the Court, is not overruled by the Price Waterhouse and Oncale Supreme Court decisions because those cases were not directly on point with the Blum decision.
The Court also affirmed the dismissal of Ms. Evans’ retaliation claim because she had failed to properly preserve her objection to the dismissal in district court; however, the Court of Appeals disagreed with the district court’s dismissal of Ms. Evans’ claim of discrimination based on non-conformity to gender stereotypes and held that a claimant who is gay can have a claim of gender stereotype discrimination separate from a claim of discrimination based on sexual orientation.
Ms. Evans and Lambda Legal requested that her appeal be heard again by the entire 11th Circuit, instead of the three-judge panel that had originally decided her appeal.
Finally, the Court of Appeals remanded the case to the District Court to allow Ms. Evans to amend her complaint to properly state a claim of gender stereotype discrimination. Though Ms. Evans now has the opportunity to amend her complaint, the result was not satisfactory for those arguing that Title VII prohibits sexual orientation-based discrimination. Therefore, Ms. Evans and Lambda Legal requested that her appeal be heard again by the entire 11th Circuit, instead of the three-judge panel that had originally decided her appeal. The Court has since denied that request.
Though the outcome of Ms. Evans’ appeal may look bleak for LGBT advocates, there remain signs of a turn in the tide, even if it is a slow turn. Just before the decision was handed down in the Evans case, the 7th Circuit Court of Appeals released an opinion in Hively v. Ivy Tech, holding that Title VII prohibitions on sex discrimination did encompass sexual orientation. In this case, Ms. Hively was a professor at Ivy Tech who was openly gay. She filed a complaint against Ivy Tech, alleging employment discrimination on the basis of sexual orientation. The District Court ruled against Hively concluding, as the District Court did in Evans, that Title VII did not prohibit sexual orientation discrimination. The District Court’s holding was appealed and a three judge panel at the 7th Circuit affirmed the District Court’s holding, citing circuit precedent just as the 11th Circuit three judge panel had done in Evans; however, in the majority opinion, the panel urged the 7th Circuit as a whole to hear the appeal and reconsider the case precedent.
Hively differs from Evans in that the 7th Circuit granted the request to rehear the appeal before the entire 7th Circuit, and the Court overruled the three judge panel’s decision and the precedent it was based on. The Court held that Title VII did encompass sexual orientation-based discrimination for three reasons. First, a person’s attraction to someone of the same sex does not conform to gender stereotypes and, under Price Waterhouse, discrimination based on non-conformance to gender stereotypes is prohibited by Title VII. Second, discrimination on the basis of sexual orientation is necessarily sex discrimination. A person who is discriminated against for being attracted to females only when that person is herself a female is logically based on her sex.
Finally, reaching back to the earlier discrimination issues, the Court paralleled the structure of discrimination outlawed in Loving v. Virginia. In Loving, the Supreme Court held that discriminating against a person based on the race of the person they wish to associate with—association by marriage in that particular case—is discrimination based on race. Likewise, discrimination against a person for the sex of a person they are associated with is discrimination based on sex.
The 7th Circuit three judge panel in Hively is not the only example of a reluctant majority suggesting that the Circuit reconsider precedent. In Christiansen v. Omicom Group, the Chief Judge of the Second Circuit, in a concurring opinion, noted that arguments for a Title VII claim based on sexual orientation discrimination have merit and urged his court to reconsider the issue.
There have also been several notable responses to criticism of interpreting Title VII to allow for claims based on sexual orientation-based discrimination. In response to the criticism that preventing sexual orientation-based discrimination was not the intent of Congress in passing Title VII, Judge Posner of the 7th Circuit remarked that while the drafters of Title VII did not intend to give protection to gay employees, that intent is immaterial. Though he does not directly address sexual orientation-based discrimination, the late Justice Scalia stated in his Oncale opinion, “Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
Regardless of how one feels that Title VII should be interpreted, the conversation surrounding LGBT discrimination is often a tense one. LGBT advocates will continue to press the issue. Lambda Legal announced in early July that Ms. Evans will appeal the 11th Circuit decision to the United States Supreme Court. With the circuit split now in place between the 7th Circuit and almost every other circuit, there is a good chance that SCOTUS will take up the issue, and possibly make a decision regarding sexual orientation-based discrimination.