Gay Job Bias Protection Issue Cued Up for Supreme Court

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By Patrick Dorrian and Kevin McGowan

A federal appeals court won’t rehear a lesbian security guard’s argument that workplace discrimination based on sexual orientation is unlawful sex bias prohibited by existing federal law.

The U.S. Court of Appeals for the Eleventh Circuit’s July 6 order leaves in place a March ruling that Title VII of the 1964 Civil Rights Act doesn’t expressly outlaw employment bias against gay and lesbian workers under the law’s sex discrimination prohibitions ( Evans v. Ga. Reg’l Hosp. , 11th Cir., No. 15-15234, rehearing en banc denied 7/6/17 ). It also sharpens a split among federal appeals courts on whether Title VII prohibits bias based on sexual orientation.

A “compelling case” now exists for U.S. Supreme Court review, Greg Nevins, who is counsel and employment fairness strategist for Lambda Legal Education and Defense Fund in Atlanta, told Bloomberg BNA July 7. Lambda Legal, which represented Jameka Evans in her case against Georgia Regional Hospital, said it will seek high court review.

The Eleventh Circuit’s ruling conflicts with the view of the Chicago-based Seventh Circuit, which in April reversed its long-standing precedent and held that sexual orientation bias necessarily is sex discrimination under Title VII.

Nevins represented Kimberly Hively, the lesbian community college teacher who prevailed in the Seventh Circuit, as well as Evans before the Eleventh Circuit.

The Seventh Circuit is the only federal appeals court so far to rule Title VII prohibits sexual orientation discrimination. The Second Circuit, based in New York, has agreed to a full court rehearing of a case challenging its precedent that Title VII doesn’t provide express protections to gay and lesbian workers against job discrimination.

Courts’ 'Stark’ Split Warrants Review

The Eleventh Circuit’s decision not to rehear Evans’ case, even after receiving briefs that laid out the Seventh Circuit’s reasoning, means a “really stark” circuit split now exists, Nevins said.

There’s “no way to downplay” the federal appeals courts’ disagreement on “an important issue” about how Title VII should be interpreted, he said.

A federal circuit split is no guarantee of Supreme Court review, but Lambda Legal aims to “put together a very compelling argument” why the justices should take up the issue, Nevins said.

High Court Resolution Inevitable?

It’s “not particularly surprising” the Eleventh Circuit decided not to rehear Evans’ case, said J. Randall Coffey, a partner with Fisher & Phillips in Kansas City, Mo., who represents employers.

The Eleventh Circuit previously had “laid out the path” for LGBT individuals to pursue Title VII claims based on sexual stereotyping, and its precedent holding the federal statute doesn’t reach sexual orientation bias is long-standing, Coffey told Bloomberg BNA July 7.

A clear split exists among the federal circuit courts since the Seventh Circuit decided Hively v. Ivy Tech Community College, Coffey said. The Eleventh Circuit might have believed it didn’t need to weigh in when it appears “inevitable” the Supreme Court ultimately will decide the Title VII sexual orientation issue, he said.

There are “more and more cases in the lower courts” in which workers are claiming Title VII protection based on their status as gay, lesbian, or transgender individuals, Coffey said.

Even if the high court declines to review the Eleventh Circuit’s decisions in Evans’ case, one of those other cases could become the vehicle for Supreme Court review, he said.

Briefing on a petition for Supreme Court review in Evans should be completed by “early fall,” so the justices’ decision on whether to take up the Title VII issue could come in their October 2017 term, Coffey said.

To contact the reporters on this story: Patrick Dorrian in Washington at pdorrian@bna.com and Kevin McGowan at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

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