From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...
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.
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.
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.
Text of the court order is available at http://www.bloomberglaw.com/public/document/Jameka_Evans_v_Georgia_Regional_Hospital_et_al_Docket_No_1515234_/4?doc_id=X1Q6NSLRRT82&fmt=pdf.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)