Cert petition: Does Title VII prohibit sexual orientation discrimination?

December 11, 2017 update: The US Supreme Court denied certiorari in this case.


"It shall be an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex."

OK. What about discrimination because of one's sexual orientation? That's the issue raised in a petition for certiorari filed by a gay female security officer. Evans v. Georgia Regional Hospital (cert filed 09/07/2017) [Petition and other briefs].

Jameka Evans claimed that her supervisors harassed her and otherwise punished her because of her sexual orientation. The district court magistrate judge said Title VII “was not intended to cover discrimination against homosexuals.” The district court dismissed the case, and the 11th Circuit held that Evans could not state a claim by alleging workplace discrimination because of her sexual orientation. Evans v. Georgia Regional Hospital (11th Cir 03/10/2017) [Opinion].

So Evans (originally a pro se plaintiff, and now backed by Lambda Legal) is asking the US Supreme Court to take up this case.

Discussion of Hively v Ivy Tech Community College decision on sexual orientation discrimination

There is a split of authority between Circuits. Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir 2017) (en banc) [Opinion] held that – indeed – Title VII forbids discrimination on the basis of sexual orientation. The 7th Circuit – typically described as a "conservative" court – voted 8-3 on this issue. Also, two judges (out of three) in Christiansen v. Omnicom Grp., Inc., 852 F.3d 195 (2nd Cir 2017) [Opinion] expressed the opinion that Title VII forbids discrimination on the basis of sexual orientation; however that court held just the opposite because they lacked authority to overrule prior circuit precedent. Zarda v. Altitude Express, Inc., 855 F.3d 76 (2nd Cir 2017) [Opinion] also asserted a lack of authority to overrule prior circuit precedent, but that case is now under en banc review by the entire 2nd Circuit.

At the same time, there are plenty of court decisions taking essentially the same position as the 11th Circuit's.

Federal agencies have taken conflicting positions. The EEOC has opined that allegations of discrimination on the basis of sexual orientation necessarily state a claim of discrimination on the basis of sex. The Department of Justice has taken the opposite position.

With splits of authority, and with the obvious importance of the issue involved, this seems like an ideal case for the Supreme Court to decide. There is some more pre-certiorari briefing to be done before the Court even puts this case on its conference calendar to decide whether to grant the cert petition.

[For a list of current employment law cases, see Supreme Court Watch]