And one judge is not pleased.
You may recall that in March 2017, a panel of the U.S. Court of Appeals for the Eleventh Circuit ruled 2-1 that Title VII did not prohibit discrimination based on sexual orientation. Judge Robin Rosenbaum, an Obama appointee, was the author of the famous "Free to Be, You and Me" dissent.
In Bostock v. Clayton County (Georgia) Board of Commissioners, a three-judge panel of the Eleventh Circuit had upheld in May the dismissal of a lawsuit alleging sexual orientation discrimination based on Title VII.
This week, the Eleventh Circuit declined to review the panel decision en banc (by all of the judges), and Judge Rosenbaum dissented.
Did she ever.
Citing the Second and Seventh circuit decisions in Zarda v. Altitude Express and Hively v. Ivy Tech, Judge Rosenbaum called the issue of Title VII protection against sexual orientation discrimination "indisputably en-banc-worthy." Two paragraphs later, she called it "objectively en-banc-worthy."
Criticizing the Bostock panel for following a 39-year-old precedent from the U.S. Court of Appeals for the Fifth Circuit*, Judge Rosenbaum said, "I cannot explain why a majority of our Court is content to rely on the precedential equivalent of an Edsel with a missing engine, when it comes to an issue that affects so many people."
*The Fifth Circuit included Alabama, Florida, and Georgia until the Eleventh Circuit was created in 1981.
In the Bostock panel's defense, the "Edsel" decision from 1979 was reaffirmed by the Evans panel in 2017.
I do agree with Judge Rosenbaum that, whatever the outcome, it would be nice to have the full Eleventh Circuit provide a more thorough discussion of whether Title VII prohibits sexual orientation discrimination and why or why not.
The plaintiff in Bostock had already asked the Supreme Court to review the decision, as has the employer in Zarda. It is very possible that the SCOTUS will agree to rule on this issue, especially since we have a split in the circuits.