Executive Summary: On March 10, 2017, in Evans v. Georgia Regional Hospital, a split panel of the U.S. Court of Appeals for the Eleventh Circuit held that it was bound by prior precedent that Title VII of the Civil Rights Act of 1964 does not prohibit sexual orientation discrimination. The majority opinion was clear that only a ruling from the Eleventh Circuit sitting en banc could change the state of the law on this issue. Evans moved for reconsideration en banc. The Eleventh Circuit denied the request on July 6, 2017. The Circuits are now split on the issue, providing an opportunity for the U.S. Supreme Court to definitely decide the issue.

Discussion: Until recently, the Circuit Courts had long held that sexual orientation is not a protected class under Title VII.

Nevertheless, in April 2015, Jameka Evans, a lesbian security officer at Georgia Regional Hospital, filed suit, pro se, in the Southern District of Georgia alleging that she was denied equal pay, harassed, and constructively discharged because of her sexual orientation and because she did not have a traditional “womanly” presentation. After the Southern District of Georgia dismissed her claim sua sponte, Lambda Legal Education and Defense Fund, a nonprofit national organization promoting LGBTQ rights, appealed on Evans’ behalf. On March 10, 2017, a divided panel of the Eleventh Circuit followed prior precedent that Title VII does not prohibit sexual orientation discrimination and upheld the District Court’s decision. The Evans panel held it could not rule otherwise absent action from the Eleventh Circuit en banc. Lambda Legal filed a petition for rehearing en banc.

While that petition was pending, on April 4, 2017, in Hively v. Ivy Tech Community College, the full Seventh Circuit overturned its prior case law holding that sexual orientation is not protected by Title VII. Lambda Legal also represents Hively. This landmark decision marked the first of its kind, and appeared to pave the way for other Circuit Courts to follow suit. Indeed, on May 25, 2017, taking the Seventh Circuit’s lead, the Second Circuit granted rehearing en banc in Zarda v. Altitude Express, in which a skydiving instructor claimed a violation of Title VII, alleging he was terminated after telling a customer he was homosexual. A petition for rehearing en banc also remains pending in the Second Circuit in the case of Christiansen v. Omnicom.

The Eleventh Circuit, however, is taking a different approach. On July 6, 2017, in a succinct per curium order in Evans, the Eleventh Circuit declined the opportunity to reconsider whether Title VII protects sexual orientation.

Lambda Legal immediately announced that it would be filing a petition for certiorari to the United States Supreme Court. The issue is ripe for review by the Supreme Court, given that there is now a split in the Circuits created by the Seventh Circuit’s decision in Hively that sexual orientation is a protected class under Title VII, and the Evans Court’s decision declining to reconsider the issue.

Bottom Line: Employers with multi-state operations now, more than ever, need to be aware of the laws in each jurisdiction and state in which they operate. Despite the continued ambiguity in federal law, many states and local governments have enacted their own laws prohibiting discrimination based on sexual orientation, gender identity and transgender status. Employers should also be aware of continued expansion of other laws to protect LGBTQ individuals, including the Americans with Disabilities Act. Irrespective of the laws to which the employer is subject, as a practical matter, it is recommended that all employers provide internal protections to LGBTQ individuals. Employers should have policies that prohibit discrimination against and harassment of employees based on sexual orientation, gender identity, gender expression and transgender status and provide comprehensive procedures providing a mechanism for employees to report such discrimination and harassment. Any complaint received must be thoroughly investigated and a resolution reached. Such policies and procedures provide maximum protection for employers.