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to Section One | to Arts & Entertainment
posted Friday, March 17, 2017 - Volume 45 Issue 11
Title VII doesn't protect Lesbians and Gays, 11th Circuit says
Section One
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Title VII doesn't protect Lesbians and Gays, 11th Circuit says

by Mike Andrew - SGN Staff Writer

A three-judge panel of the 11th Circuit Court of Appeals has ruled that Title VII of the Civil Rights Act does not protect Lesbian and Gay employees.

The vote in the March 10 decision was 2-1.

The original lawsuit was brought by Lambda Legal on behalf of Jameka Evans against her former employer, Georgia Regional Hospital. Evans charged that she was discriminated against and forced out of her job because she is Lesbian and did not conform to gender norms in her appearance and demeanor.

After a US district judge dismissed Evans' lawsuit, Lambda Legal appealed to the 11th Circuit, arguing that sexual orientation discrimination is a form of sex discrimination and therefore illegal under Title VII.

Lambda Legal has a similar suit pending in the 7th Circuit. Both cases depend on suits brought by the Equal Employment Opportunity Commission (EEOC), in which the agency argues that the Title VII ban on discrimination on account of sex also protects employees against harassment and firing because of their sexual orientation.

In her dissenting opinion, Judge Robin S. Rosenbaum wanted to uphold the EEOC reading of Title VII.

'I argue that discrimination against a lesbian because she fails to comport with the employer's view of what a woman should be violates Title VII's ban on discrimination 'because of . . . sex,' and I support this argument with the text of Title VII, Supreme Court precedent, and this Court's opinion in Glenn,' Rosenbaum wrote.

'I also note that logic is on my side. Of course, the [majority of judges] is free to ignore my analysis rather than respond to it, but that doesn't make it go away.'

Lambda Legal immediately asked for an en banc review in the 11th Circuit - a hearing before all the court's judges.

'This is not the end of the road for us and certainly not for Jameka,' said Greg Nevins, Employment Fairness Project Director for Lambda Legal.

'Keeping your job shouldn't depend on whether or not you pass for straight. There is no way to draw a line between sexual orientation discrimination and discrimination based on gender nonconformity, because not being straight is gender nonconforming, period. Ninety percent of Americans believe that LGBT people should be treated equally in the workplace. The public is on the right side of history, and it's time for the 11th Circuit to join us.'

Lambda Legal's 7th Circuit case, brought on behalf of Kimberly Hively, is substantially the same. Hively was forced from her job after a supervisor noticed her kissing her girlfriend.

A federal district judge dismissed Hively's suit, brought under Title VII, and Lambda Legal then appealed to the Circuit Court. The ruling in that case is still pending.

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