Thursday, December 28, 2017

Title VII Update: Appeal Concerning Sexual Orientation Discrimination Will Not Be Heard By the U.S. Supreme Court

The U.S. Supreme Court passed up an opportunity to resolve a hotly disputed aspect of employment law when it refused to hear an appeal from the Eleventh Circuit Court of Appeals on whether sexual orientation discrimination is illegal under Title VII.  The denial of certiorari effectively leaves in place an Eleventh Circuit ruling that Title VII of the Civil Rights Act of 1964 does not cover discrimination based upon sexual orientation.

In a 2-1 decision, the Eleventh Circuit held in Evans v. Georgia Regional Hospital that the plaintiff Evans, a former security guard for the defendant hospital, could not sue her former employer for sexual orientation discrimination because “sex” as used in Title VII does not mean sexual orientation. Interestingly, the Eleventh Circuit acknowledged that Evans was denied equal pay or work and harassed, but affirmed the dismissal of her sexual orientation claim. It is important to emphasize that the petition for review did face procedural complications that may have dissuaded the U.S. Supreme Court from hearing the case. More specifically, Georgia Regional Hospital declined to participate on the basis that it hadn’t been served with a copy of the complaint.  The case was remanded to district court, where Evans will likely have an opportunity to amend the complaint.

There are several takeaways from the decision denying review.
  • First, a circuit split remains.  While the Eleventh Circuit ruled in Evans that sexual orientation isn’t included in Title VII, the Seventh Circuit disagreed in Hively v. Ivey Tech, ruling that sexual-orientation discrimination is a form of gender bias, which Title VII explicitly prohibits in the workplace. Only the U.S. Supreme Court can resolve this circuit split.
  • Second, employers should enforce policies that protect LGBTQ employees. Even though courts are divided and will continue to be until the U.S. Supreme Court weighs in, Illinois law governs sexual orientation discrimination.  To that end, employers should continue to enforce policies that protect LGBTQ workers in accordance with Illinois law.
  • Third, procedural hiccups doomed any chance for review. Evans’ case was initially dismissed before any evidence was presented, and that in answering the legal question of whether sexual orientation discrimination is illegal under Title VII, the courts assumed Evans’ allegations were true. In fact, due to a procedural defect, Georgia Regional Hospital told the justices that it had not participated in the case in the lower courts and would not do so in the Supreme Court even if review were granted. These complications likely gave way to the denial of the petition for review. 
  • Fourth, future U.S. Supreme Court review is likely. Eventually, the U.S. Supreme Court will need to resolve the circuit split and it’s likely to have that opportunity soon as Zarda v. Altitude Express, Inc., a Second Circuit case, is still pending. In Zarda, the Second Circuit is also considering whether Title VII forbids discrimination based on sexual orientation. Either way, any decision in that case will likely result in a petition for review with the U.S. Supreme Court by one of the parties. 
We hope this information is helpful and we will continue to apprise you of any developments. Please let us know if you have any questions about this case or your workplace policies as they relate to this issue.