Discrimination Based on Gender Non-Conformity Is Prohibited by Title VII; Discrimination Based on Sexual Orientation Is Not

In Evans v. Georgia Regional Hospital, 2017 WL 943925 (Mar. 10, 2017), the Eleventh Circuit considered an issue that has been the subject of much judicial and academic debate in recent years:  How does Title VII’s prohibition on discrimination “because of . . . sex” apply to claims of LGBT discrimination?  Perhaps unsurprisingly, the court was sharply split on the answer, with each judge on the panel authoring a separate opinion.  The opinion for the court was authored by U.S. District Judge Jose E. Martinez, sitting by designation, with a concurrence by Judge William Pryor, who wrote separately to address a lengthy partial dissent by Judge Robin Rosenbaum.  (Notably, this is at least the third published decision in recent months in which Judge Pryor and Judge Rosenbaum have authored divergent opinions, the other two being Lunsford v. Process Technologies Services, LLC (In re Lunsford) and Appling v. Lamar, Archer & Cofrin, LLP (In re Appling).)

The plaintiff, Jameka Evans, had been employed by Georgia Regional Hospital as a security officer. After she voluntarily resigned (and filed a charge with the Equal Employment Opportunity Commission), Evans filed a pro se complaint under Title VII alleging that she was discriminated against because of her sexual orientation and gender non-conformity and that she was retaliated against.  The magistrate judge granted her motion to proceed in forma pauperis but screened the complaint sua sponte and dismissed all claims.  The judge reasoned, based on case law from all other circuits addressing the issue, that Title VII “was not intended to cover discrimination against homosexuals,” so there is no claim for discrimination based on sexual orientation.  And, as to gender non-conformity, it was “just another way to claim discrimination based on sexual orientation,” no matter how characterized.  The judge further recommended that the dismissal be with prejudice, because Evans had pleaded no actionable claim and was not likely able to do so.  The district court adopted (without further comment) the magistrate’s report and recommendation and appointed counsel from Lamda Legal (which had filed an amicus brief in support of Evans’s objections to the R&R) to represent Evans on appeal.  The EEOC later filed an amicus brief in support of Evans’s positions on appeal.

The Eleventh Circuit affirmed the district court as to the nonexistence of a claim for discrimination based on sexual orientation, but the court vacated and remanded to allow Evans to amend her complaint to plead a claim for discrimination based on gender non-conformity. In a previous decision, Glenn v. Brumby, the court had held that discrimination against a transgender individual because of gender non-conformity was sex discrimination, stating, “[a]ll persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype.” 663 F.3d 1312, 1318 (11th Cir. 2011).  A claim for sexual-orientation discrimination, on the other hand, was foreclosed by an even earlier case, Blum v. Gulf Oil Corp., which held that “[d]ischarge for homosexuality is not prohibited by Title VII.”  597 F.2d 936, 938 (5th Cir. 1979).  (The Eleventh Circuit has adopted as binding precedent all decisions of the Fifth Circuit issued prior to September 30, 1981.)  Because this statement from Blum was an alternative holding and not merely dicta, and because the Supreme Court’s subsequent decisions in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), do not permit departure from that holding, the court concluded that it was bound thereby.  The court also noted that this conclusion was consistent with the other circuit courts to decide the issue, many of which had done so after Price Waterhouse and Oncale.

Although the majority opinion purports to employ a straightforward application of prior precedent, 36 of the decision’s 55 pages are taken up by separate concurring and dissenting opinions arguing about the continuing validity of Blum’s holding that Title VII does not prohibit discrimination on the basis of sexual orientation.

Judge Pryor concurred in the majority opinion but wrote separately to address the “error” of the position taken by the EEOC and the dissent “that a person who experiences discrimination because of sexual orientation necessarily experiences discrimination for deviating from gender stereotypes.” This position, Judge Pryor argued, is based on “false stereotypes of gay individuals” and a misreading of Price Waterhouse and Glenn.  Those cases were not concerned with whether an employee’s status deviated from the employer’s ideal of what a woman “should be” but instead with claims that an employee’s behavior deviated from a gender stereotype.  Judge Pryor also pointed out that Congress has declined to amend the law to make sexual orientation a protected class.

Judge Rosenbaum concurred in the remand as to the gender non-conformity claim but authored a lengthy dissent from the majority’s rejection of a claim for discrimination based on sexual orientation: “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.” This is discrimination “because of . . . sex” under 42 U.S.C. § 2000e-2(a)(1) and therefore violates Title VII.

Reviewing the court’s Title VII jurisprudence before and after Price Waterhouse, the dissent noted Glenn’s statement that Price Waterhouse “eviscerated” the court’s earlier decisions in this area.  Specifically, Price Waterhouse made clear that Title VII prohibited not only discrimination based on ascriptive stereotyping—i.e., the assumption that an employee would conform to an undesired stereotype—but also discrimination based on prescriptive stereotyping—i.e., an employee’s failure to conform to a desired stereotype.  The fact that homosexuality may also be a status or a class does not change the fact that discrimination based on sexual orientation is “discrimination for deviating from a gender stereotype.”

Judge Rosenbaum rejected the concurrence’s “status” versus “behavior” distinction, arguing that it is based on a misreading of Glenn and is not supported by the text of Title VII.  By analogy, Title VII’s prohibition of discrimination “because of . . . religion” “does not allow an employer to discriminate against a non-practicing Catholic for simply being a Catholic any more than it allows an employer to discriminate against a Catholic for coming to work on Ash Wednesday with a cross of ashes on her forehead.”  The dissent also rejected the idea that its position was based on false stereotypes of gay individuals:  “Lesbians are women who are sexually attracted to women.  That’s not a stereotype; it’s a definition.”

The dissent disagreed with the majority’s conclusion that the court was bound to follow Blum, because it was decided before Price Waterhouse “eviscerated” prior Title VII jurisprudence, including Blum.  Moreover, “[o]ur sister circuits’ decisions are not correct” in concluding that Title VII does not protect a man or woman from discrimination because he is gay or she is a lesbian.  It remains to be seen whether the court will accept Judge Rosenbaum’s urging to rehear the case en banc on this issue.

Posted by Stacey Mohr.

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