Federal law has long prohibited discrimination based on a person’s sex. In recent years, several courts have held that discrimination based on failure to conform to a gender stereotype is a form of prohibited sex-based discrimination. But courts across the country have been more divided about whether those same laws preclude discrimination based on one’s sexual orientation. According to a federal court in Georgia, the answer is no. In a decision handed down on March 10, 2017, the Eleventh Circuit Court of Appeals upheld the dismissal of a former Georgia hospital worker’s claim that she was fired because of her sexual orientation. In Evans v. Georgia Regional Hospital, the court held that Title VII does not cover such claims.
Jameka Evans worked as a security officer at Georgia Regional Hospital from August 1, 2012 to October 11, 2013. According to the summary of facts in the opinion, Evans was “targeted for termination for failing to carry herself in a ‘traditional woman[ly] manner.’” Although Evans—a gay woman—did not “broadcast her sexuality,” it was “evident’” that she identified with the male gender, because of how she presented herself—‘(male uniform, low male haircut, shoes, etc.)’.”
Evans further claimed that she was “punished because her status as a gay female did not comport with [the hospital Chief’s] gender stereotypes and this caused her to experience a hostile work environment,” including being passed over for promotions and subjected to an unbearable work environment intended to end her employment at the hospital.
The district court dismissed Evans’ claim, reasoning that “Title VII was not intended to cover discrimination against homosexuals.” By its express terms, Title VII does not reference sexual orientation. On appeal, however, Evans argued that discrimination against a person based on sexual orientation is a form of sex-based discrimination and often coincides with discrimination for failing to conform with gender stereotypes—both of which are prohibited under Title VII.
Relying on what it deemed to be binding precedent, the Eleventh Circuit rejected this argument. The court noted a 1979 holding from the Fifth Circuit in Blum v. Gulf Oil Corporation that “[d]ischarge for homosexuality is not prohibited by Title VII.” Eleventh Circuit courts are bound by Fifth Circuit decisions that predated the Eleventh Circuit’s 1981 creation unless expressly overruled by the U.S. Supreme Court or in a subsequent opinion by the entire Eleventh Circuit. Because Evans was decided by a 3-judge panel rather than the entire Eleventh Circuit, the court determined that it was bound by the Blum decision.
In a dissenting opinion, one Circuit Judge in Evans argued that the Supreme Court did overrule Blum in a 1989 opinion. In Price Waterhouse v. Hopkins, the Supreme Court held that Title VII proscribed discrimination because of an individual plaintiff’s failure to conform to the discriminator’s desired and stereotyped perceptions of how members of a certain sex should be or act. According to the dissenting judge, when a woman alleges that she was discriminated against because she is a lesbian, she is necessarily alleging that she was discriminated against because she failed to conform to the employer’s image of what women should be. Under Price Waterhouse, the dissenting judge argued, such discrimination is prohibited by Title VII. But the majority disagreed, ruling that Price Waterhouse did not overrule Blum because it did not squarely address whether sexual orientation discrimination is prohibited by Title VII.
Takeaway for Employers
The Evans ruling will impact employers in different ways depending on where they are located. Even if federal law does not proscribe sexual orientation discrimination, many state and local laws do. But in states such as Florida and Georgia, which are within the Eleventh Circuit’s geographic jurisdiction and lack sexual orientation-specific state discrimination laws, employers will be able to rely on Evans to defend against such claims. Even employers in these areas should tread cautiously, however, as the plaintiff in Evans is almost sure to seek a review of the 3-judge panel’s decision by the entire Eleventh Circuit, which will have the ability to overrule Blum if it is so inclined. It is also quite possible that the Supreme Court will visit this issue in the near future should any other Circuit courts adopt the dissenting judge’s analysis in Evans. Employers should therefore stay tuned for now and consult legal counsel if faced with a claim for sexual orientation discrimination.