Eleventh Circuit Issues Critical Ruling on Sexual Orientation Discrimination
The case is Evans v. Georgia Regional Hospital decided on 3/10/17 [2017 U.S. App. LEXIS 4301]. Three things make this case special. First, it’s a 2-1 opinion that is likely to lead to an en banc ruling by all available 11th Circuit judges. Second, the majority ruling specifies that Title VII does not cover discrimination based on sexual orientation. However, the majority in this case left the door open for the plaintiff (Jameka Evans) to state a claim based on “failing to comport with her employer’s stereotyped view of women.” Third, and perhaps most important, since no federal circuit court as yet has ruled that Title VII prohibits sex discrimination based on sexual orientation, is that, given the split decision in this case and ruling in other circuit courts, the Evans case might set the stage for a Supreme Court review on the relationship between sexual orientation and stereotype views of men and women.
The facts of the case are that Evans, who was a hospital security officer a little over a year, left the job claiming unequal pay for equal work, harassment, and physical assault and battery. She claimed sex discrimination for “failing to carry herself in a traditional womanly manner.” The district court granted summary judgement favoring the hospital but the majority opinion of the 11th Circuit was sort of yes and no. The majority opinion, authored by Judge Martinez, was essentially that gender “non-conformity” is actionable under Title VII, but that discrimination based on sexual orientation does automatically imply discrimination based on gender non-conformity. Or in Judge Martinez’s words:
Even though we hold, infra, that discrimination based on gender non-conformity is actionable, Evans’s pro se complaint nevertheless failed to plead facts sufficient to create a plausible inference that she suffered discrimination. ….. 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. 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.
Thus, the majority opinion left open the opportunity for Evans to provide evidence that she was discriminated against because of gender non-conformity.
From a case law prospective, the interesting issue in Martinez’s ruling was that it is based on a 1970 case in which the 5th Circuit ruled that sexual orientation is not protected under Title VII (Blum v. Gulf Oil Corp. [431 F.2d 409]. The more recent push by the EEOC into this arena is based primarily on the Supreme Court’s ruling in Price Waterhouse v. Hopkins (1989) [490 US 228], which is much more recent precedent than Blum, and which clearly supports the issue that gender stereotyping is prohibited under Title VII.
The dissenting judge (Rosenbaum) argued that Blum is not an appropriate precedent in view of the Hopkins ruling. He also cited a more recent 11th Circuit ruling in which a lower court ruling was overturned based on the employer’s mistreatment of a transgender woman appearing in women’s clothing (Glenn v. Sewell R. Bumby (2011) [663 F.3d 1312]. Judge Rosenbaum opined that it is “utter fiction” that Evans was not discriminated against for “failing to comport with her employer’s stereotyped view of women.” In other words, his view is that discrimination based on sexual orientation is tantamount to discrimination against non-conformity to traditional views of males and females.
There’s a lot to this case and I recommend it as a great read. For our purposes, it moves the issue closer in time to a potential Supreme Court ruling. Other circuit courts are now deciding similar cases. All it takes is for two of them to clash.
By Art Gutman, Ph.D., Professor, Florida Institute of Technology