11th Circuit: It’s perfectly legal to discriminate against someone because she is gay

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On Friday, the Eleventh Circuit Court of Appeals, generally considered one of the more conservative appellate courts, issued a mixed-bag ruling in a high-profile LGBT-rights case.

Sex stereotyping is unlawful; Title VII covers gender-nonconformity claims.

In Evans v. Georgia Regional Hospital (opinion here), the Eleventh Circuit reaffirmed that  Title VII of the Civil Rights Act of 1964, which bans sex discrimination at work, also covers gender-nonconformity claims.

Serendipitously — here I go again — Judge William Pryor was part of the three-judge panel on the Evans decision. Judge Pryor, rumored to be one of three finalists for the Supreme Court nomination that went to William Gorsuch, was also involved in the seminal Eleventh Circuit case, Glenn v. Brumby (opinion here). In Glenn, the Eleventh Circuit  concluded that discrimination against a transgender individual because of gender-nonconformity was sex discrimination and held that such sex stereotyping violates Title VII.

But, Title VII does not ban sexual-orientation discrimination.

However, notwithstanding amicus briefs from Lambda Law and the EEOC, the Eleventh Circuit reaffirmed its previous position in Blum v. Gulf Oil Corp. (opinion here), where the court held that “discharge for homosexuality is not prohibited by Title VII.” The Eleventh Circuit noted that this outcome was in line with where several other circuits stood on the issue.

Judge Pryor really thinks that Title VII does not ban sexual-orientation discrimination.

In a separate concurring opinion, Judge Pryor wrote “to explain the error of the argument of the Equal Employment Opportunity Commission and the dissent that a person who experiences discrimination because of sexual orientation necessarily experiences discrimination for deviating from gender stereotypes.”

And this is where it gets interesting. Here’s how Judge Pryor distinguished a sexual orientation claim from a gender non-conformity claim:

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 as a “triable case of gender stereotyping discrimination.”

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. 

Guh?!?

I’m not gay and don’t other pretend to have my finger on the pulse of what it means to be gay. So, hopefully this does not come off as insensitive, but I’m pretty sure that a gay man is more attracted to men than women. And a gay woman is more attracted to women than men.

Or, put it this way. (Again, with the insensitivity caveat).

Let’s say that two gay men and two gay women are shipwrecked on a desert island. All things being equal, I know which pairs I’m betting on to hook up first. Why? Because, I’m stereotyping. I’m gender stereotyping!

And that, my friends, is unlawful at work. Like the EEOC, Lambda Law, and the dissent in Evans, it’s impossible to divorce the two concepts. That is, a person who experiences discrimination because of sexual orientation necessarily experiences discrimination for deviating from gender stereotypes.

So, what’s next?

There are two other pending cases at federal appellate courts, Christiansen v. Omnicom Group, Inc. in the Second Circuit, and Hively v. Ivy Tech Community College in the Seventh Circuit, in which the issue of sexual-orientation coverage under Title VII is the big issue. I think at least plaintiff, Hively, and maybe both plaintiffs, will prevail. That would create a circuit split, and a corresponding path for Ms. Evans to appeal the Eleventh Circuit decision to the Supreme Court. Unless, of course, the Eleventh Circuit agrees to re-hear the case en banc first.

In the meantime, even if federal law where you conduct business mirrors the decision in Evans, don’t forget:

  • Federal law prohibits sex stereotyping (and notwithstanding Judge Pryor, it’s tough to divorce the two concepts)
  • Many state and local laws affirmatively ban sexual orientation discrimination
  • You’re free to implement rules banning LGBT bias at work
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