Supreme Court Grants Review of Eleventh Circuit Case, Among Others, to Decide Title VII’s Application to LGBT Discrimination

The Supreme Court today granted certiorari in a number of cases considering whether Title VII prohibits discrimination against LGBT employees, including a case decided by the Eleventh Circuit, Bostock v. Clayton County, Georgia, 723 F. App’x 964 (May 10, 2018). In Bostock, a panel of Judges Tjoflat, Wilson, and Newsom affirmed, in an unpublished per curiam opinion, the dismissal of the plaintiff’s Title VII claims, relying on circuit precedent—most recently Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), cert. denied, 138 S. Ct. 557 (2017)—holding that discrimination based on homosexuality is not protected by Title VII. The subsequent denial of en banc consideration drew a dissent from Judge Rosenbaum (who had dissented in Evans as to this holding), joined by Judge Jill Pryor. Bostock v. Clayton Cty. Bd. of Comm’rs, 894 F.3d 1335 (11th Cir. 2018).

Bostock has been consolidated with Altitude Express, Inc. v. Zarda, 883 F.3d 100 (2d Cir. 2018), from the Second Circuit, which has held, contrary to the Eleventh Circuit, that Title VII does prohibit discrimination based on sexual orientation.

Posted by Stacey Mohr.

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