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The Civil Rights Act's protections against discrimination 'on the basis of sex' do not protect gay and lesbian workers who face discrimination on the basis of their sexual orientation, the Eleven Circuit ruled on Friday.
That wouldn't be a terribly noteworthy outcome, if this were still the 1970s, or even the early 2000s. During those periods of civil rights litigation, courts routinely refused to extend employment protections to gay, lesbian, and transgender employees. But in recent years, the consensus has started to shift. The EEOC has interpreted the Civil Rights Act to protect gay workers, for example, and the Eleventh itself has extended protections to transgender employees.
But those earlier cases still stand, the Eleventh ruled, and they still bind the court's interpretation of civil rights laws today.
Gender or Sexual Orientation Discrimination?
The case, Evans v. Georgia Regional Hospital, arose after Jameka Evans quit her security guard job at a hospital after allegedly experiencing discrimination, harassment, and abuse because of her sexuality. Such treatment came because she did not present herself in a "traditional woman[ly] manner," wearing a "male uniform, low male haircut, shoes, etc." Her "status as a gay female did not comport" with traditional gender stereotypes, leading to a hostile workplace, Evans alleged in her suit, brought pro se and pursued in forma pauperis.
Determining that Title VII "was not intended to cover discrimination against homosexuals," Evans' magistrate judge recommended dismissing the case sua sponte, which the district court did. Evans' claims of gender discrimination were "just another way to claim discrimination based on sexual orientation," the judge said.
Now with Lambda Legal on her side, Evans followed the case up to the Eleventh Circuit.
Evans' gender discrimination claim stems from a line of Civil Rights Act jurisprudence going back to the Supreme Court's 1989 decision in Price Waterhouse v. Hopkins. There, the Court ruled that Title VII encompasses discrimination based on gender stereotyping.
That logic also applies to anti-LGBT discrimination, advocates argue. Under this interpretation, homophobic discrimination is viewed as a form of gender discrimination, rather than a whole separate beast. The belief that a woman should not be masculine or should not love other women, the argument goes, is a form of gender stereotyping.
Court Still Bound by Blum, Eleventh Rules
The EEOC and the Obama administration had come to similar conclusions, with the EEOC bringing its first Title VII suits over anti-gay discrimination last summer. The Eleventh, too, was once on the forefront of a more expansive reading of gender discrimination. In 2011's Glenn v. Brumby, the Eleventh Circuit ruled that discrimination against a transgender worker was discrimination because of sex.
But here the court's 1979 Blum v. Gulf Oil Corp. foreclosed Evans' reading of Title VII, the Eleventh determined. In that case, the court explained in passing that "discharge for homosexuality is not prohibited". Such a comment was not dicta, as the EEOC argued, and remains binding. The Supreme Court's subsequent Price Waterhouse decision and its progeny don't change that.
Judge Jose Martinez of the Southern District of Florida, sitting by designation, wrote the majority opinion, to which Judge William Pryor concurred. Pryor wrote separately to say that gays and lesbians should not be treated as a separate class for Title VII, where sexuality is always protected, but that "a gay individual may establish with enough factual evidence that she experienced sex discrimination because her behavior deviated from a gender stereotype."
Judge Robin S. Rosenbaum dissented, arguing that sexual orientation discrimination should be recognized under the law. "Plain and simple," she wrote, "when a woman alleges, as Evans has, that she has been discriminated against because she is a lesbian, she necessarily alleges that 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."
Lambda Legal, who participated as amicus curiae, says it will seek en banc review, the ABA Journal reports.