11th Circuit Finds Title VII Does Not Ban Sexual Orientation Discrimination
Author: David B. Weisenfeld, XpertHR Legal Editor
March 17, 2017
A divided 11th Circuit appellate court has ruled 2-1 that a gay woman who presents herself in a masculine manner cannot sue her former employer for sexual orientation discrimination under federal civil rights law. In rejecting the plaintiff's claim in Evans v. Georgia Regional Hospital, the court cited its past pronouncements that "discharge for homosexuality is not prohibited" under Title VII of the Civil Rights Act.
The plaintiff worked at the hospital as a security officer. Although she was a lesbian, she never discussed her sexual preference at work. However, she wore a male uniform and low male haircut. She claimed that her supervisor punished her because she did not comport with his gender stereotypes and that this caused her to experience a hostile work environment, including a shift change as well as being passed over for promotion in favor of a less qualified individual.
While the court majority acknowledged that discrimination based on the failure to conform to a gender stereotype is sex-based discrimination, it nonetheless rejected the plaintiff's claim that she endured workplace discrimination because of her sexual orientation. It found that she needed to do more than establish her status as a lesbian.
In a concurring opinion, Circuit Judge William Pryor added, "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."
In dissent, Circuit Judge Robin Rosenbaum wrote of the plaintiff, "It is utter fiction to suggest that she was not discriminated against for failing to comport with her employer's stereotyped view of women."
A 7th Circuit Court of Appeals panel reached a similar result in 2016 in ruling that Title VII does not protect employees who claim sexual orientation discrimination in Hively v. Ivy Tech Community College. However, the full 7th Circuit reheard the case last fall and a decision is pending.
Other federal appeals courts have reached contrary results, so it is likely that the plaintiff in Evans will ask the 11th Circuit to rehear the case or to seek Supreme Court review.