As many of you may recall, in March of 2017, we sent an e-lert titled “Eleventh Circuit Rules that Sexual Orientation is Not a Protected Characteristic for Purposes of Title VII.” That e-lert focused on the Eleventh Circuit’s decision in the case of Jamela K. Evans v. Georgia Regional Hospital, et. al., in which a three Judge panel ruled in a 2-1 decision that “sexual orientation” is not a protected characteristic for purposes of Title VII of the Civil Rights Act of 1964 (“Title VII”). As we continue to monitor this issue, and the Evans case, we are providing an update to our prior e-lert to make you aware that the Eleventh Circuit recently denied Ms. Evans’ request for the entire Eleventh Circuit to rehear the case en banc. This means that the Eleventh Circuit decision will stand (at least for now), and that currently “sexual orientation” is not a protected characteristic for purposes of Title VII in a state covered by the Eleventh Circuit (which includes Florida). Ms. Evans’ attorney has indicated that the case will be appealed to the Supreme Court of the United States.
While the Eleventh Circuit’s decision in Evans 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. In the time since our prior e-Lert, the Seventh Circuit, in Hively v. Ivy Tech Community College, ruled that “sexual orientation” is a protected characteristic for purposes of Title VII. Given the circuit split between the Eleventh Circuit and the Seventh Circuit, we anticipate that this issue will appear before the Supreme Court in the near future.
Further, “sexual orientation” discrimination is not the same as “gender” discrimination. Gender is considered a protected characteristic within the Eleventh Circuit, and therefore 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, in Florida 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 Florida 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. Even so, it remains possible that a Florida state court could rule that “sexual orientation” is considered a protected characteristic for purposes of the FCRA.
As can be seen from the above, there may be legal pitfalls employers need to be aware of when addressing issues related to “sexual orientation,” particularly when and employer does business in different Florida locations and/or in other states. To help promote a commitment to a fully non-discriminatory workplace and to avoid having to navigate the uncertainty related to “sexual orientation” issues in the employment context, many employers have decided to treat “sexual orientation” as a protected characteristic and list “sexual orientation” in company non-discrimination policies.