Update on Title VII and Sexual Orientation Discrimination

Updating our previous post on this issue, the Eleventh Circuit Court of Appeals recently affirmed the dismissal of a complaint alleging sexual orientation discrimination under Title VII.   In its 2-1 decision in Evans v. Georgia Regional Hospital, the court explained that its prior precedent foreclosed the ability to bring a claim for sexual orientation discrimination under Title VII.   The court looked specifically to its decision from 1979 in Blum v. Gulf Oil Corp., where it held that Title VII did not prohibit the discharge of an employee based on his homosexuality.  Although the plaintiff in Evans argued that Blum was not binding, the court concluded otherwise and further noted that every other circuit that has addressed the issue so far has also found sexual orientation discrimination not actionable under Title VII (including the First Circuit in Higgins v. New Balance Athletic Shoe).

In affirming the dismissal, the court distinguished between sexual orientation discrimination and discrimination based on an individual’s failure to conform to a gender stereotype.  The court acknowledged that, in the latter case, discrimination based on gender non-conformity is sex-based discrimination.   This so-called sexual stereotype theory was first articulated by the Supreme Court in its 1989 decision in Price Waterhouse v. Hopkins.  However, the Eleventh Circuit found that while Price Waterhouse confirmed that gender non-conformity claims may be brought under Title VII, that decision did not squarely address whether Title VII prohibits sexual orientation discrimination.  As a result, the Eleventh Circuit found that Price Waterhouse did not justify departing from its prior precedent in Blum.

The majority opinion in Evans was accompanied by a strong dissent, which essentially argued that when an employee alleges discrimination because of sexual orientation, the employee necessarily alleges that he or she has been discriminated against for failing to conform to the employer’s image of what men or women should be, and that this is discrimination “because of sex.”

Given the split decision in the Evans case, there is a chance it may be reviewed by the entire panel of the Eleventh Circuit.  And, in light of recent developments in other circuits, it very well may be that the issue is headed for the Supreme Court.