Why it matters
In a decision that is already being cited in other courts around the country, the U.S. Court of Appeals for the Eleventh Circuit held that discrimination based on sexual orientation is not included in Title VII’s prohibition against discrimination “because of sex.” A security officer for Georgia Regional Hospital, Jameka Evans claimed she was constructively discharged from her position because she did not conduct herself in a traditional female manner and that her sexual orientation resulted in a hostile work environment as she did not comport with traditional gender stereotypes. A district court rejected her Title VII suit and a divided panel of the Eleventh Circuit affirmed, holding that sexual orientation is not protected under the statute. The majority cited a 1979 Fifth Circuit decision for support while the dissent argued that intervening U.S. Supreme Court case law trumped that precedent. The court did remand the case to permit the employee to amend her complaint with regard to her sex stereotyping discrimination claim, however, as she failed to plead sufficient facts. Employers around the country are already citing the decision for support, including in a closely watched case currently pending before the en banc Seventh Circuit.
For a little over one year, Jameka Evans worked as a security officer at Georgia Regional Hospital. After she left the job, she filed a pro se complaint alleging that she was discriminated against on the basis of her sex and targeted for termination for failing to carry herself in a traditional female manner.
Evans claimed that a less qualified individual was appointed to be her direct supervisor, that her equipment was tampered with, and that after she complained about allegedly discriminatory behavior against her, she was retaliated against. The hospital moved to dismiss the suit, arguing that Title VII does not prohibit discrimination based on sexual orientation.
A magistrate judge recommended that the lawsuit be dismissed with prejudice, holding that the statute doesn’t cover discrimination based on sexual orientation and that the plaintiff’s claim of discrimination based on gender non-conformity was “just another way to claim discrimination based on sexual orientation.” A district court judge agreed. With the benefit of appointed counsel, Evans appealed.
The U.S. Court of Appeals for the Eleventh Circuit affirmed in part and reversed in part.
Binding circuit precedent forecloses a claim of workplace discrimination under Title VII based on her sexual orientation, the court said. In 1979, the Fifth Circuit wrote in Blum v. Gulf Oil Corp. that “[d]ischarge for homosexuality is not prohibited by Title VII.” When the circuit was divided to create the Eleventh Circuit, the court adopted as binding precedent all prior decisions of the Fifth Circuit.
The majority was not swayed by an argument from the Equal Employment Opportunity Commission (EEOC) as amicus curiae that the statement in Blum was dicta and not binding precedent. Nor was the panel persuaded that the U.S. Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins supported a cause of action for sexual orientation discrimination under Title VII. “The fact that claims for gender non-conformity and same-sex discrimination can be brought pursuant to Title VII does not permit us to depart from Blum,” the majority wrote.
Other circuits have reached the same conclusion, the panel noted.
However, the court did permit Evans to pursue her gender non-conformity claim, holding that it “constitutes a separate, distinct avenue for relief under Title VII,” and is not just another way to claim discrimination based on sexual orientation, as the lower court ruled.
Although the court found discrimination based on gender non-conformity actionable, Evans’ original pro se complaint failed to plead facts sufficient to move the case forward, the court said. “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,” the panel wrote. The court affirmed dismissal of the claim but reversed to allow Evans the opportunity to amend her complaint.
One member of the majority wrote separately to discuss the “legally distinct” concepts of a gender non-conformity claim under Title VII and a person who experiences discrimination because of sexual orientation.
“Deviation from a particular gender stereotype may correlate disproportionately with a particular sexual orientation, and plaintiffs who alleged discrimination on the basis of gender nonconformity will often also have experienced discrimination because of sexual orientation,” Circuit Judge William Pryor wrote. “But under Title VII, we ask only whether the individual experienced discrimination for deviating from a gender stereotype.”
Judge Robin S. Rosenbaum dissented, arguing that Blum was overruled by Price Waterhouse, which “substantially broadened the scope of actionable discriminatory stereotyping under Title VII.”
“Plain and simple, when a woman alleges, as Evans has, that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer’s image of what women should be—specifically, that women should be sexually attracted to men only,” she wrote. “And it is utter fiction to suggest that she was not discriminated against for failing to comport with her employer’s stereotyped view of women. That is discrimination ‘because of … sex,’ and it clearly violated Title VII under Price Waterhouse.”
To read the decision in Evans v. Georgia Regional Hospital, click here.