By Chris Johnson, Washington Blade
A federal appeals court has ruled against a lesbian employee seeking relief after being harassed and forced out of her job, declining to accept arguments discrimination on the basis of sexual orientation violates existing laws against gender bias.
In a 2-1 decision, a three-judge panel on the U.S. 11th Circuit Court of Appeals ruled Title VII of the Civil Rights Act of 1964, which bars discrimination on the basis of sex, affords no protections to Jameka Evans, a security guard targeted for harassment and effectively terminated from her job at Georgia Regional Hospital for being a lesbian.
U.S. District Judge Jose Martinez, a George W. Bush appointee sitting by designation on the 11th Circuit, ruled Title VII doesn’t prohibit discrimination on the basis of sexual orientation based on the federal appeals court’s existing precedent, such as the 1979 decision in Blum v. Gulf Oil Corp.
“Evans and the EEOC question these decisions, in part, because of Price Waterhouse and Oncale,” Martinez writes. “Whether those Supreme Court cases impact other circuit’s decisions, many of which were decided after Price Waterhouse and Oncale, does not change our analysis that Blum is binding precedent that has not been overruled by a clearly contrary opinion of the Supreme Court or of this Court sitting en banc. Accordingly, we affirm the portion of the district court’s order dismissing Evan’s sexual orientation claim.”
The decision largely upholds a ruling from a district court, which dismissed the complaint Evans filed against her former employer in 2015 on the basis that Title VII doesn’t protect her as a lesbian. The district court later allowed the appointment of the LGBT legal group Lambda Legal to represent Evans, who initially filed the lawsuit on her own accord. Lambda argued on her behalf before the 11th Circuit in oral arguments in December.
But Martinez also allows Evans to amend her complaint to sue on the basis that she was discriminated on the job based on sex stereoptying. The decision found “she did not provide enough factual matter to plausibly suggest that her decision to present herself in a masculine manner led to the alleged adverse employment actions,” which led the district court to reject that argument as well. Thus the 11th Circuit affirms the district court’s order in part, vacates it in part and remands it for further proceedings.
Had the court ruled in favor of Evans, it would have the first-time ever a federal appeals court found Title VII prohibits discrimination against lesbian, gay and bisexual people. Although a growing number of trial courts and the U.S. Equal Employment Opportunity Commission have found anti-gay discrimination is barred under current law, no federal appeals court have thus far subscribed that view. Meanwhile, federal appeals courts have created substantial case law finding Title VII bars discrimination against transgender people.
U.S. Circuit Judge William Pryor, another appointee of George W. Bush, wrote a concurring opinion expressing frustration the EEOC in the case of Baldwin v. Foxx would find discrimination based on sexual orientation is the same as discrimination based on gender stereotypes.
“But just as a woman cannot recover under Title VII when she is fired because of her heterosexuality, neither can a gay woman sue for discrimination based on her sexual orientation,” Pryor said. “Deviation from a particular gender stereotype may correlate disproportionately with a particular sexual orientation, and plaintiffs who allege discrimination on the basis of gender nonconformity will often also have experienced discrimination because of sexual orientation. But under Title VII, we ask only whether the individual experienced discrimination for deviating from a gender stereotype.”
Pryor’s opinion contrasts with an earlier decision he joined in 2011 finding the prohibition of sex discrimination under Title VII applies to transgender people. It should be noted Pryor was reportedly on President Trump’s short list as a potential replacement for the late U.S. Associate Justice Antonin Scalia on the Supreme Court.
Dissenting from the decision was U.S. Circuit Judge Robin Rosenbaum, an Obama appointee, who wrote the panel “ignores this clear mandate” the Supreme Court delivered in the 1989 Price Waterhouse decision that workplace discrimination based on sex stereotyping is unlawful.
“Plain and simple, when a woman alleges, as Evans has, that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer’s image of what women should be — specifically, that women should be sexually attracted to men only,” Rosenbaum writes. “And it is utter fiction to suggest that she was not discriminated against for failing to comport with her employer’s stereotyped view of women.”
Now that the decision has come down, Lambda has the option of either letting the decision stand, seeking an “en banc” rehearing before the full 11th Circuit or filing a petition from certiorari to seek redress before the Supreme Court. The organization announced in a statement it has settled on the second option.
“This is not the end of the road for us and certainly not for Jameka,” said Lambda’s employment fairness project director Greg Nevins. “Keeping your job shouldn’t depend on whether or not you pass for straight. There is no way to draw a line between sexual orientation discrimination and discrimination based on gender nonconformity because not being straight is gender-nonconforming, period. Ninety percent of Americans believe that LGBT people should be treated equally in the workplace. The public is on the right side of history, and it’s time for the 11th Circuit to join us.”