11th Circuit Rules Title VII Does Not Prohibit Anti-Gay Discrimination

ATLANTA (CN) – A divided 11th Circuit panel ruled that Title VII of the Civil Rights Act of 1964 does not prohibit employers from discriminating against workers on their basis of their sexual orientation.

The decision is departure from the findings of several federal courts and the Equal Employment Opportunity Commission who in the past have concluded that Title VII’s prohibition on sex discrimination includes anti-gay discrimination.

Friday’s 2-1 decision by 11th Circuit focused on the case of Jameka Evans, a lesbian who dressed like a male while performing her duties as a security guard at Georgia Regional Hospital in Savannah.

She sued the hospital in April 2015 claiming she was “denied equal pay or work, harassed, and physically assaulted or battered.”

In her complaint she argued Title VII bars sex stereotyping, and that this should extend to discrimination based on sexual orientation and gender presentation.

As summarized in the ruling, Evans said she was discriminated against “on the basis of her sex and targeted for termination for failing to carry herself in a ‘traditional woman[ly] manner.’… it was ‘evident’ that she identified with the male gender, because of how she presented herself – ‘(male uniform, low male haircut, shoes, etc.).’”

But in September 2015, U.S. Magistrate Judge G.R. Smith dismissed the Evans’ complaint with prejudice, holding that sexual orientation is not a protected class under Title VII.

“To say that an employer has discriminated on the basis of gender non-conformity is just another way to claim discrimination based on sexual orientation,” Smith wrote.

“To inflict an adverse employment action (unfair discipline, denied promotion, etc.) because a male is too effeminate or a female too masculine is to discriminate based on sexual orientation (“gender nonconformity”), which is reflected in the gender image one presents to others – that of a male, even if one is biologically a female,” the magistrate continued.

The 11th Circuit mainly agreed with Smith’s ruling, upholding his finding that sexual orientation is not a protected class under Title VII, but reversed the magistrate’s decision to dismiss the case “with prejudice” and remanding it to allow Evans to amend her complaint.

“The lower court erred because a gender non-conformity claim is not ‘just another way to claim discrimination based on sexual orientation,’ but instead, constitutes a separate, distinct avenue for relief under Title VII,” wrote U.S. District Judge Jose Martinez, who was sitting by designation.

“In other words, Evans did not provide enough factual matter to plausibly suggest that her decision to present herself in a masculine manner led to the alleged adverse employment actions,” Martinez  continued. “Therefore, while a dismissal of Evan’s gender non-conformity claim would have been appropriate on this basis, these circumstances entitle Evans an opportunity to amend her complaint one time unless doing so would be futile.”

But in a stinging dissent, U.S. Circuit Judge Robin Rosenbaum said the majority’s position harkened back to an era that women — whether gay or straight — thought they’d put far behind them.

“A woman should be a ‘woman.’ She should wear dresses, be subservient to men, and be sexually attracted to only men. If she doesn’t conform to this view of what a woman should be, an employer has every right to fire her. That was the law in 1963 — before Congress enacted Title VII of the Civil Rights Act of 1964. But that is not the law now,” Rosenbaum wrote.

“And the rule that Title VII precludes discrimination on the basis of every stereotype of what a woman supposedly should be —including each of those stated above — has existed since the Supreme Court issued Price Waterhouse v. Hopkins … 28 years ago,” she continued.

“Yet even today the panel ignores this clear mandate. To justify its position, the panel invokes 38-year-old precedent — issued ten years before Price Waterhouse necessarily abrogated it—and calls it binding precedent that ties our hands,” Rosenbaum said.

“Plain and simple, when a woman alleges, as Evans has, that she has been discriminated against because she is a lesbian, she necessarily alleges 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. And it is utter fiction to suggest that she was not discriminated against for failing to comport with her employer’s stereotyped view of women. That is discrimination ‘because of . . . sex,’ … and it clearly violates Title VII under Price Waterhouse.’

U.S. Circuit Judge William Pryor, the other member of the majority, strenuously objected to Rosenbaum’s position, writing in separate opinion that “the dissent would create a new form of relief based on status that runs counter to binding precedent and would undermine the relationship between the doctrine of gender nonconformity and the enumerated classes protected by Title VII.”

It is an error, Pryor said, to assume that a  person who experiences discrimination because of sexual orientation necessarily experiences discrimination for deviating from gender stereotypes.”

“Although a person who experiences the former will sometimes also experience the latter, the two concepts are legally distinct. And the insistence otherwise by the Commission and the dissent relies on false stereotypes of gay individuals,” Pryor said.

“The unsurprising reality that some individuals who have experienced discrimination because of sexual orientation will also have experienced discrimination because of gender nonconformity by no means establishes that every gay individual who experiences discrimination because of sexual orientation has a ‘triable case’ of gender stereotyping discrimination,'” he continued. “The Commission and the dissent would have us hold that sexual orientation discrimination always constitutes discrimination for gender nonconformity.”

Pryor continued: “By assuming that all gay individuals behave the same way or have the same interests, the Commission and the dissent disregard the diversity of experiences of gay individuals. Some gay individuals adopt what various commentators have referred to as the gay ‘social identity’ but experience a variety of sexual desires.

“Like some heterosexuals, some gay individuals may choose not to marry or date at all or may choose a celibate lifestyle. And other gay individuals choose to enter mixed-orientation marriages,” Pryor wrote. “A gay individual may establish with enough factual evidence that she experienced sex discrimination because her behavior deviated from a gender stereotype held by an employer, but our review of that claim would rest on behavior alone.”

Greg Nevins, employment fairness project director for Lambda Legal, which represented Evans after she initially attempted to represent herself, said in a written statement that, “[t]here is no way to draw a line between sexual orientation discrimination and discrimination based on gender nonconformity because not being straight is gender-nonconforming, period. Ninety percent of Americans believe that LGBT people should be treated equally in the workplace. The public is on the right side of history, and it’s time for the Eleventh Circuit to join us.”

Nevins said Lambda Legal will seek an en banc 11th Circuit review of the decision.

Representatives of Georgia Regional Hospital did not immediately respond to a request for comment.

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