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U.S. Supreme Court Asked to Address Sexual Orientation Discrimination Under Title VII

Owen H. Laird

The Harman Firm blog has run several stories over the past year about the evolving case law concerning sexual orientation discrimination under Title VII of the Civil Rights Act.  Last week, a plaintiff in a sexual orientation discrimination case in the Eleventh Circuit, Evans v. Georgia Regional Hospital, requested that the United States Supreme Court take up the issue.

To recap: Title VII is one of the foundational federal anti-discrimination statutes; it protects employees against discrimination on the basis of sex, race, color, national origin, and religion.  Sexual orientation is not one of the protected statuses enumerated in Title VII.  In 2016, however, the U.S. Equal Employment Opportunity Commission (“EEOC”) – the federal agency tasked with administering Title VII – filed two lawsuits asserting sexual orientation discrimination claims under Title VII.  This was a major change, as both the EEOC and nearly every federal court had previously taken the position that sexual orientation discrimination was not prohibited under Title VII.

In the wake of the EEOC’s decision, plaintiffs across the United States began pursuing sexual orientation discrimination claims under Title VII with greater vigor.  And while most cases were dismissed, with judges citing to previous cases and disregarding the EEOC’s position change, a handful of district courts did follow the EEOC and rule that sexual orientation was a protected status under Title VII.  Earlier this year, the Seventh Circuit became the first circuit court to rule that Title VII covers sexual orientation discrimination, a major step forward.

Nonetheless, most circuit courts continue to reject the proposition that Title VII protects employees from sexual orientation discrimination.  As a result, a circuit split has emerged, with various circuits taking contrary positions on the matter, and other circuits – including the Second Circuit here in New York – preparing to address the matter anew.

With so little settled law on the books, Jameka Evans, the plaintiff in Evans, seeks to take her case to the U.S. Supreme Court. Ms. Evans alleges that her employer, Georgia Regional Hospital, violated Title VII by discriminating against her because of her sexual orientation and her gender nonconformity. The district court dismissed Ms. Evans’s complaint, taking the position that Title VII does not protect employees from such discrimination.  Ms. Evans appealed that ruling to the Eleventh Circuit, which upheld the district court’s decision and denied Ms. Evans’ claim.

Last week, Ms. Evans and her attorneys at Lambda Legal, an LGBT public policy organization, filed a petition for certiorari with the United States Supreme Court, asking the Court to definitively answer the question of whether sexual orientation discrimination is prohibited under Title VII.  As the circuit courts are split on this issue, it is likely that the Court will take up this question.  Although the current Court leans conservative, it did recently hand down the landmark decision legitimizing gay marriage; it is not clear how the Court would rule on this issue.

Workers in New York have state and local protection against sexual orientation discrimination.  If you believe that you have been discriminated against because of your sexual orientation, contact The Harman Firm, LLP.

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