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.