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By Porter Wells
The federal appeals courts have more fodder to chew on as the U.S. Supreme Court quietly considers whether to take on the issue of workplace sexual orientation bias protections.
The latest legal feedstock is courtesy of the U.S. Court of Appeals for the Eleventh Circuit, which said it would not reconsider its earlier decision that federal law doesn’t prohibit workplace discrimination against gay, lesbian, or bisexual employees. Judge Robin Rosenbaum penned a blistering rebuke of her fellow judges, arguing they should have taken the opportunity to weigh in on the issue, especially after two of the other 12 federal appeals courts have opted in recent months to have their full compliment of judges consider the issue.
The disagreement in the Eleventh Circuit—which has jurisdiction over federal courts in Alabama, Florida, and Georgia—comes as the Supreme Court contemplates whether or not to take up the very question the full Eleventh Circuit did not: whether Title VII of the 1964 Civil Rights Act’s prohibition against sex discrimination encompasses sexual orientation bias.
The issue has split federal appeals courts and “is indisputably en-banc-worthy,” Rosenbaum said in her seven-page dissent. An en banc session is one in which all of the court’s judges take part in a case. The full Second and Seventh circuits considered the question to be of such “extraordinary importance” that they filled pages upon pages with discussion on the question—169 pages and 69 pages, respectively, Rosenbaum said.
“She nailed it,” Gregory Nevins of Lamda Legal said. He works out of the gay civil rights’ advocacy organization’s Atlanta office and served as counsel in a handful of significant lawsuits combating gay bias in the workplace.
Rosenbaum was outvoted this time around, Nevins said, but her dissent is a powerful message that the next time the question comes before the court, it should be taken up and given the intellectual rigor it deserves.
Though there’s a presumption the Supreme Court will someday hand down a definitive answer to the question of whether Title VII contemplates sexual orientation as a part of a person’s “sex,” the Supreme Court hasn’t actually yet taken on a case that will let them do that. The justices may revisit the issue in the next term. Gerald Bostock—the gay Georgia county employee whose case was denied full review by the Eleventh Circuit—filed an appeal to the Supreme Court in May after an initial three-judge panel dismissed his case.
Bostock’s petition is one of two already pending at the high court, which may have a new conservative justice on the bench this falls whose views on workplace sexual orientation protections are unclear.
Until the Supreme Court tackles the issue, the institutional legitimacy of federal appeals courts depends on hearing cases, weighing arguments, and fully articulating their decisions, Nevins said.
Michelle Phillips, a partner with Jackson Lewis who advises employers on their workplace diversity and affirmative action obligations, understands Rosenbaum’s frustration. But Phillips is concerned that Rosenbaum’s call to action could creep towards judicial activism.
“We don’t want to encourage courts to continually reanalyze precedent,” Phillips told Bloomberg Law. Gay civil rights are a particularly hot-button issue these days, but judicial procedure should be the same no matter the subject area, she said.
The Eleventh Circuit’s original May 10 opinion gets right to the point. Under its own precedent, Title VII grants no relief to a gay employee like Bostock. The three-judge panel in that ruling said it “cannot overrule a prior panel’s holding.” That’s a task that must be undertaken by the full circuit court or the Supreme Court, the judges said then.
Rosenbaum’s July 18 dissent from the court’s refusal to reconsider that opinion’s holding “is basically telling her colleagues, ‘hey, we have a job to do here, and we need to do that job until we’re told to stand down by the Supreme Court,’” Nevins said.
A court’s “job,” according to Nevins, is to provide the public with comprehensive, thorough opinions on even the toughest questions. That way, even if someone disagrees with how a court ruled, at least he can be walked through why a court came down one one side or another.
Phillips disagreed. “It’s a narrow opinion, it’s not the most comprehensive opinion, but they applied and followed the law of their circuit.”
Bostock’s in good, if somewhat awkward, company in his petition to have the Supreme Court hear his case. Altitude Express, Inc., the employer in the Second Circuit’s decision, has also asked the Supreme Court to review its case. Bostock and Altitude asked the same question about the legality of workplace sexual orientation bias under Title VII, but they want different answers from the Court.
Brian Sutherland, Bostock’s attorney, said he agrees with Rosenbaum that the interpretation of Title VII’s prohibition against workplace discrimination on the basis of sex is “one of extraordinary importance, particularly in light of the split among the Circuits.”
“We certainly hope that the Supreme Court will grant Mr. Bostock’s petition and answer this important question that the Eleventh Circuit declined again to consider,” said Sutherland, who is with Buckley Beal LLP in Atlanta.
Freeman Mathis & Gary LLP in Atlanta represented Clayton County, and didn’t respond to Bloomberg Law’s request for comment.
The Supreme Court declined in December 2017 to hear an appeal from a different Eleventh Circuit decision, which also held that discrimination on the basis of sexual orientation isn’t prohibited by Title VII. Judge Rosenbaum wrote a dissent in that case as well.
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