On July 6, 2017, the United States Court of Appeals for the Eleventh Circuit denied the Plaintiff’s request for a re-hearing en banc (before all the judges) of the Court’s earlier ruling, by a three judge panel, that there is no viable legal claim for discrimination based upon sexual orientation. This may now set the stage for the Supreme Court to address one of the most significant questions to arise under Title VII in recent years: is sexual orientation discrimination “sex discrimination” within the meaning of the statute.
The Plaintiff in Evans v. Georgia Regional Hospital is a homosexual female who was employed as a security guard at a hospital. In her Complaint, Plaintiff alleged that she was discriminated against (denied equal pay, harassed and physically assaulted) on the basis of her sexual orientation and targeted for termination for failing to carry herself in a “traditional woman[ly] manner.” Regarding Plaintiff’s claim of discrimination based on her sexual orientation, the magistrate judge in the District Court held that Title VII “was not intended to cover discrimination against homosexuals.” The three-judge panel of the 11th Circuit Court of Appeals affirmed the dismissal of that claim holding that binding precedent (Blum v. Gulf Oil Corp.) foreclosed such a cause of action which has not been overruled by a clearly contrary opinion of the Supreme Court or the Court of Appeals sitting en banc.
The decision rendered by the 11th Circuit Court of Appeals in Evans is contrary to the decision previously rendered by the 7th Circuit Court of Appeals in April in Hively v. Ivy Tech. In Hively, the Court granted en banc review and held that discrimination on the basis of sexual orientation is indeed a form of sex discrimination prohibited by Title VII. Although also presented with precedent to the contrary, the 7th Circuit Court of Appeals determined that “[t]he logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.”
Although appeals to the Supreme Court are not a matter of right, the Supreme Court gives serious consideration to scenarios where a Court of Appeals has entered a decision in conflict with the decision of another Court of Appeals on the same important matter. Following the refusal of her request for a rehearing en banc, Ms. Evan’s attorneys announced that they will indeed seek to take her matter all the way to the Supreme Court. Will the Supreme Court then decide to hear this appeal? Only time will tell. But given the Circuit Court split described above and the momentum of various LGBTQ case law in recent months, it may very well be likely.