As many of you may recall, in November of 2016, we sent an e-lert titled “Courts Trending Towards Considering ‘Sexual Orientation’ as a Protected Characteristic.” As a follow-up to that e-lert, as we continue to monitor this issue, we wanted to make you aware of a recent decision in the United States Court of Appeals for the Eleventh Circuit (which governs Florida). On March 10, 2017, in the case of Jameka K. Evans v. Georgia Regional Hospital, et. al., a panel of three Judges from the Eleventh Circuit ruled by a 2-1 vote that “sexual orientation” is not a protected characteristic for purposes of Title VII of the Civil Rights act of 1964 (“Title VII”).
While the Evans decision holds that “sexual orientation” is not a protected characteristic for purposes of Title VII, employers should be cautious when addressing issues related to “sexual orientation” for multiple reasons. It is likely that the plaintiff in the Evans case will seek an en banc review of this decision before a full panel of Judges from the Eleventh Circuit, meaning that the entire panel may have an opportunity to rule on this decision. Further, it is possible that this issue could wind up in front of the Supreme Court of the United States in the future. As indicated in our prior E-Lert, this issue is also being addressed in Hively v. Ivy Tech Community College, which is pending in the United States Court of Appeals for the Seventh Circuit. Oral arguments in the Hively case occurred on November 30, 2016. If the Seventh Circuit were to find that “sexual orientation” is a protected characteristic for purposes of Title VII, while that decision would not control in Florida, it could streamline the issue to the Supreme Court of the United States sooner rather than later.
Also, gender non-conformity claims remain viable pursuant to Title VII. An example of a gender non-conformity claim is a claim by a male that he has been discriminated against because he is perceived as not being masculine enough, or a claim by a female that she has been discriminated against because she is perceived as not being feminine enough. Many times there is an overlap between allegations of sexual orientation discrimination and gender non-conformity discrimination.
Lastly, there are many local city or county ordinances which do list “sexual orientation” as a protected characteristic. The Evans decision is limited to Title VII, and does not impact those local ordinances that list “sexual orientation” as a protected activity. Further, while the Florida Civil Rights Act (“FCRA”), which is Florida’s state law which prohibits employment discrimination because of many protected characteristics, is usually construed in accordance with Title VII, we are not aware of any decision of a Florida state court interpreting whether “sexual orientation” is a protected characteristic for purposes of the FCRA. Therefore, it remains possible that “sexual orientation” could be considered a protected characteristic for purposes of the FCRA.
As can be seen from the above, there are many legal pitfalls employers need to be aware of when addressing issues related to “sexual orientation.”