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11th Circuit: Title VII Does Not Cover Sexual Orientation Discrimination

Lev Craig

Earlier this month, the United States Court of Appeals for the Eleventh Circuit affirmed in part and vacated and remanded in part the district court’s decision in Evans v. Georgia Regional Hospital, holding that Title VII of the Civil Rights Act of 1964 (“Title VII”) does not prohibit sexual orientation discrimination in the workplace.

Jameka Evans worked at Georgia Regional Hospital (the “Hospital”) in Atlanta, Georgia, as a security officer. Evans, who is a lesbian, had a masculine gender presentation at work: she wore the men’s security officer uniform, men’s shoes, and a short, masculine haircut. According to Evans’ complaint, the Hospital discriminated against her because of her sexual orientation and because she did not behave in a “traditional woman[ly] manner.” Evans alleged that she was denied equal pay, harassed, physically assaulted, targeted for termination, and retaliated against after making a complaint of discrimination to the Hospital’s Human Resources department.

Evans filed suit pro se in the U.S. District Court for the Southern District of Georgia, bringing a sexual orientation discrimination claim and a sex discrimination claim, the latter of which was based on the Hospital’s discrimination against her on the basis of her gender nonconformity. The district court dismissed the complaint, finding that Title VII “was not intended to cover discrimination against homosexuals” and that Evans’ sex stereotyping claim was “just another way to claim discrimination based on sexual orientation.” The court appointed counsel from Lambda Legal, who had filed an amicus brief in support of Evans, to represent Evans on appeal, and Evans appealed to the Eleventh Circuit.

In its March 10, 2017 decision, the Eleventh Circuit vacated and remanded the district court’s dismissal of Evans’ sex discrimination claim with instructions to grant Evans leave to file an amended complaint. While the Eleventh Circuit found that Evans’ complaint had not adequately shown that “her decision to present herself in a masculine manner led to the alleged adverse employment actions,” it held that “the lower court erred because a gender non-conformity claim is not ‘just another way to claim discrimination based on sexual orientation,’ but instead, constitutes a separate, distinct avenue for relief under Title VII.” Accordingly, Evans—particularly as a pro se litigant—was entitled to amend her complaint to plead additional facts in support of her sex-stereotyping gender discrimination claim.

The court next addressed Evans’ sexual orientation discrimination claim, affirming the lower court’s dismissal. While the majority opinion’s justification for the dismissal was straightforward—stating simply that binding precedent held that sexual orientation discrimination is not actionable under Title VII and thus precluded Evans from bringing the claim—Judges William Pryor and Robin Rosenbaum filed separate concurring opinions, which addressed the sexual orientation discrimination claim and Evans’ arguments in greater detail.

Pryor criticized the argument that “a person who experiences discrimination because of sexual orientation necessarily experiences discrimination for deviating from gender stereotypes.” The argument is, in other words, that discrimination on the basis of sexual orientation is at root sex discrimination because it derives from gender-based stereotypes that men should exclusively be attracted to and have relationships with women, and vice versa.

Pryor contends, however, that such an argument in fact itself “relies on false stereotypes of gay individuals” by assuming that “all gay individuals necessarily engage in the same behavior.” Pryor argues that this characterization of sexual orientation discrimination—i.e., as discrimination based on gender-based stereotypes about “correct” romantic and sexual attraction—is problematic: “By assuming that all gay individuals behave the same way or have the same interests,” it “disregard[s] the diversity of experiences of gay individuals.” That is, describing sexual orientation discrimination as sex discrimination presumes that all gay people have relationships with members of the same sex, which is not necessarily true; Pryor cites, for instance, gay people who “adopt … the gay ‘social identity’ but experience a variety of sexual desires,” “choose not to marry or date at all,” “choose a celibate lifestyle,” or “choose to enter mixed-orientation marriages.”

However, the argument that sexual orientation discrimination constitutes discrimination on the basis of sex is not solely based on universalizing claims about the relationship behavior of people who identify as gay. The claim that gay people do not conform to gender-based stereotypes need not be based on assumptions about the types of sexual and romantic relationships they have. In her opinion, concurring in part and dissenting in part, Rosenbaum wrote:

By definition, a gay employee is sexually attracted to members of her own sex. … So when an employer discriminates against an employee solely because she is a lesbian, the employer acts against the employee only because she is sexually attracted to women, instead of being attracted to only men, like the employer prescriptively believes women should be.

The essential similarity shared by gay people is an attraction to the same gender; it is hardly a “false stereotype” to assert that a person who openly identifies as gay experiences attraction to people of the same gender. An out lesbian engages in gender-nonconforming behavior when she is open about her attraction to women—whether she is in a relationship with another woman or not—because, in doing so, she defies the gender-based stereotype that women “should” be exclusively attracted to men. Consequently, an employer who discriminates against her does so because she does not conform to the employer’s prescriptive stereotypes about women.

Though federal law still does not prohibit sexual orientation discrimination in the workplace, LGBT employees in New York are protected by the New York State Human Rights Law and the New York City Human Rights Law. If your employer has discriminated against you on the basis of your sexual orientation, contact The Harman Firm, LLP.

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