Last month, on December 11, 2017, the U.S. Supreme Court denied the petition for certiorari in Evans v. Georgia Regional Hospital et al., a high-profile case asking the Justices to decide whether the prohibition in Title VII of the Civil Rights Act of 1964 against discrimination “because of . . . sex” encompasses discrimination based on sexual orientation. The denial of certiorari means that Title VII’s protections against workplace discrimination will remain subject to conflicting interpretations and enforcement from coast to coast.

The question arose in the case of Jameka Evans, a security officer at a Georgia hospital, who left her job and claimed that she had been harassed and passed over for a promotion because of her status as a gay female. The United States District Court for the Southern District of Georgia dismissed her case on the pleadings, ruling it could not go forward because Title VII does not prohibit workplace discrimination based on sexual orientation. Evans appealed her case to the U.S. Court of Appeals for the Eleventh Circuit, which affirmed in a 2-1 decision, holding that Evans could not state a claim under Title VII by alleging that she endured workplace discrimination because of her sexual orientation. The majority noted that Eleventh Circuit precedent from 1979 dictated that result, and the panel deemed itself bound to follow that precedent unless and until it is overruled by the Eleventh Circuit en banc or by the Supreme Court.

Evans then petitioned the Supreme Court for a writ of certiorari, urging the Court to take up her case to resolve a split among the federal Courts of Appeals on the issue. In an en banc decision earlier this year, the U.S. Court of Appeals for the Seventh Circuit held by an 8-3 vote that discrimination on the basis of sexual orientation is a form of “sex discrimination” prohibited by Title VII. Evans also noted that the two federal agencies charged with enforcing Title VII—the Equal Employment Opportunity Commission (“EEOC”) and the United States Department of Justice—have split over how to interpret Title VII in this context. The EEOC, which has investigative and conciliatory authority respecting discrimination claims against state or local governments, has taken the position that allegations of discrimination based on sexual orientation necessarily state a claim under Title VII; the Department of Justice, which has the authority to bring an enforcement action against federal entities, has recently announced its view to the contrary.

Notwithstanding these divergent positions taken by the federal Courts of Appeals and by the two agencies charged with enforcing Title VII, the Supreme Court denied review of Evans’ case. To be sure, the Court’s decision to deny certiorari might seem puzzling given the intractable conflict over an issue of federal statutory law, but there is a procedural quirk in this case that may have contributed to it. The hospital where Evans worked and the individuals named her lawsuit—i.e., the defendants in the case—informed the Court that they had not participated in the lower court proceedings, they took no position as to whether the Court should grant certiorari, and they would not participate in the case if certiorari were granted. Evans urged the Supreme Court to review her case notwithstanding the defendants’ lack of participation, but the Court declined. The Court may have preferred to wait for the issue to reach them again in a case with actively participating parties on both sides.

The divide among the federal Courts of Appeals and federal agencies over the scope Title VII’s protections has created uncertainty for employees and employers alike. Unless and until the Supreme Court resolves the disagreement on this important issue, the protection employees have from discrimination based on sexual orientation will continue to depend on the region they work in and the government they work for (federal or state/local).