Plaintiff in Sexual-Orientation Discrimination Case Files En Banc Petition, Highlighted by Newly Created Circuit Split

A high-profile Seventh Circuit decision and a circuit split may increase the likelihood of the Eleventh Circuit granting rehearing en banc in Evans v. Georgia Regional Hospital, a decision we covered here last month.  A divided panel in Evans held that—unlike discrimination based on gender non-conformity—discrimination based on sexual orientation is not prohibited by Title VII.  As expected (and urged by the dissent) the plaintiff in Evans has filed a petition for rehearing en banc.

The Evans holding was based primarily on the majority’s view that it was bound by former Fifth Circuit precedent rejecting a Title VII claim based on sexual orientation.  The opinion also relied on cases from each of the other federal courts of appeals holding that sexual-orientation discrimination is not actionable under Title VII.

But this week the Seventh Circuit became the first federal appellate court to hold that Title VII does prohibit discrimination based on sexual orientation. In Hively v. Ivy Tech Community College of Indiana, 2017 WL 1230393 (7th Cir. Apr. 4, 2017), the en banc court overruled its prior precedent and held “that a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.”  The decision was split 8–3, and the four separate opinions, including a concurrence by Judge Richard Posner, provide a valuable survey of differing approaches to statutory interpretation.

The plaintiffs in Evans and Hively both are represented by the same counsel from Lambda Legal.

Posted by Stacey Mohr.

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