Ironically, it happened on the same day that President Trump nominated U.S. Equal Employment Opportunity Commission Commissioner Chai Feldblum, a true champion of LGBT workplace rights, to serve a third term at the EEOC. Yesterday, the U.S. Supreme Court declined to grant certiorari in Evans v. Georgia Regional Hospital.
In plain English, the Supreme Court passed.
Last March, the Eleventh Circuit ruled that it’s perfectly legal to discriminate against someone at work because she is gay. The decision, which the Eleventh Circuit refused to reconsider, created a split among the circuits on the issue of whether Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation. (The Seventh Circuit previously held that it did.)
I was really banking on the Supreme Court taking up this issue in 2018. Instead of investing in bitcoin, I purchased futures in Evans v. Georgia Regional Hospital. It’s what Krusty the Clown would’ve done.
Why did you forsake me, U.S. Supreme Court? Well, the Supreme Court didn’t say why it wouldn’t resolve the issue now. (It never does.) Perhaps, it was because the defendant in the Evans case declined to take a legal position on the issue. Perhaps, it was to wait for the Second Circuit to decide the issue in Zarda v. Altitude Express, Inc. Then again, Altitude Express isn’t advocating for the position that Title VII permits discrimination based on sexual orientation either.
Anthony Kreis, a visiting assistant law professor at the Illinois Institute of Technology, offered another theory to The Washington Blade:
[H]e thinks the Supreme Court didn’t take up the case because other legal avenues are available to Evans.
“Jameka Evans’ lawsuit alleged she was mistreated by her supervisors because she didn’t appear feminine enough for their liking,” Kreis said. “The Eleventh Circuit said she could file suit under that theory, but she could not go forward with her lawsuit under the theory she was mistreated because of her sexual orientation. The Supreme Court is unlikely to grant cert in a case where the petitioner still has a viable claim, albeit under a different theory than she’d like.”
Kreis added Georgia Regional Hospital refused to defend itself in the case because it felt like it wasn’t properly served, which he said adds “a thorny procedural quirk that the court wouldn’t want to have in a case with such major ramifications like this.”
Maybe the Supreme Court’s upcoming opinion in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission will shed enough light on the issue.
Who knows? But, until then, depending on where your business operates, your mileage may vary as to what Title VII permits. Notwithstanding, state and local law may prohibit LGBT discrimination where you operate. Plus, no matter where your business operates, it is free to raise the bar and prohibit discrimination based on LGBT status.
And now I need to scrape together some money to invest in some of Krusty’s offshore oil rigs.