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James Tarquin, P.A
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U.S. Supreme Court Declines To Hear Appeal & Decide Whether Federal Law Prohibits Sexual Orientation Discrimination

Gender discrimination sign

Title VII of the Civil Rights Act of 1964 (Title VII), which is federal law, protects employees from discrimination on the basis of sex. The U.S. Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing Title VII, has interpreted Title VII’s sex-based protections to include discrimination on the basis of sexual orientation. In Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017), the U.S. Seventh Circuit Court of Appeals became the first federal appellate decision to expressly hold that sexual orientation discrimination is discrimination based on sex covered by Title VII. Less than one month before the decision in Ivy was handed down, the U.S. Eleventh Circuit Court of Appeals held in Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017) that Title VII does not prohibit discrimination on the basis of sexual orientation.

Eleventh Circuit Rules It Is Bound By Prior Case Law

In Evans, Jameka Evans (Evans) filed a Title VII action against her former employer, Georgia Regional Hospital (Hospital), alleging that she was discriminated against because of her sexual orientation and failure to conform to gender stereotypes. The trial court dismissed Evans Title VII claims. The trial court dismissed Evans’ claim of discrimination based on her sexual orientation because Title VII “was not intended to cover discrimination against homosexuals.” The trial court dismissed Evans’ claim of discrimination based on her failure to conform to gender stereotypes because it was “just another way to claim discrimination based on sexual orientation.”

On appeal, the Eleventh Circuit vacated the trial court’s order dismissing Evans’ claim that she was discriminated against for failure to conform to gender stereotypes. The appellate court explained that “[d]iscrimination based on failure to conform to a gender stereotype is sex-based discrimination” prohibited by Title VII. The court of appeals further explained that “all persons,” regardless of sexual orientation, “are protected from discrimination on the basis of gender stereotype.” Thus, the appellate court concluded, 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.”

However, the Eleventh Circuit affirmed the trial court’s dismissal of Evans’ claim of discrimination based on her sexual orientation. The appellate court pointed out that a prior decision of the former Fifth Circuit which is binding precedent in the Eleventh Circuit, Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979), held that Title VII does not prohibit sexual orientation discrimination. The court of appeals explained that it was “bound to follow a binding precedent in this Circuit unless and until it is overturned by this court en banc or by the Supreme Court.” Thus, the appellate court concluded, “binding precedent forecloses” a claim based on sexual orientation discrimination under Title VII.

Supreme Court Does Not Take Evans’ Case

After the Eleventh Circuit’s decision was handed down, Evans filed a petition for certiorari with the U.S. Supreme Court asking the Court to hear the case and rule that Title VII’s prohibition against sex discrimination also protects employees from discrimination on the basis of sexual orientation. On December 11, 2017, the Supreme Court issued an order declining to exercise jurisdiction and hear the appeal. Because of the Supreme Court’s refusal to resolve the issue, sexual orientation discrimination is not actionable under Title VII except in states (Illinois, Indiana, and Wisconsin) over which the Seventh Circuit Court of Appeals has federal jurisdiction. However, the Seventh Circuit’s ruling in Hively is a landmark decision and illustrates that other federal courts of appeal may soon hold that discrimination on the basis of sexual orientation is a form of sex discrimination prohibited by Title VII.

Free Consultation With Ocala Sex Discrimination Attorneys

Based in Ocala, Florida and representing employees throughout Central Florida, we have extensive experience representing employees have been subjected to sex discrimination in the workplace. If you have been the victim of sex discrimination, or have questions about sexual orientation discrimination or discrimination for failure to conform to gender stereotypes, please contact our office for a free consultation with our Central Florida sex discrimination lawyers. Our employee rights law firm takes sex discrimination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.

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