COURT SPLIT OVER SEXUAL ORIENTATION DISCRIMINATION QUESTION

Discrimination claims based on sexual orientation are a budding area of discrimination law. While many Courts have found ways to backdoor sexual orientation discrimination through the lens of gender discrimination, most  Federal Circuit Courts are still reluctant to explicitly state that sexual orientation discrimination is covered by Title VII of the Civil Rights Act of 1964.

 

Most recently, in Evans v Georgia Regional Hospital the 11th Circuit closed the door on sexual orientation discrimination claims by holding the that Title VII does not cover discrimination based on sexual orientation. However the Court left open causes of action based on similar theories of sex discrimination, such as discrimination based on gender non-conformity.

 

Jameka Evans is a lesbian who clearly identified as a man. As a security guard, Evans choose to wear a male uniform, style her hair in a manner associated with men and  even choose to wear men’s shoes. Her  personal style didn’t comport with her superior’s gender stereotypes. As a result of her very public appearance, Evans was denied equal pay, often harassed and even physically assaulted.  She often had doors closed on her and her equipment tampered with. Further, Evans was passed over for a promotion in favor of one of her less qualified co-workers, who only continued the pattern of harassment.

 

Evans eventually sought relief from the court. A magistrate judge initially addressed the claims, but denied her discrimination claim based on her he sexual orientation. The magistrate decided that Title VII was not intended to cover discrimination against homosexuals, concluding that her gender non-conformity claim was just another way to claim discrimination based on her sexual orientation. Evans appealed the decision to the Eleventh circuit court, which held the same, stating there was no legal precedent which the Court was bound to follow stating that sexual orientation claims were covered by Title VII. Evans argued that there were many recent cases which placed sexual orientation discrimination in the purview of Title VII, citing cases such as Price Waterhouse v. Hopkins, where the Court held that discrimination based on gender non-conformity was illegal under Title VII. These arguments were unpersuasive to the 11th circuit.

 

Sexual orientation discrimination occurs when an individual is harassed based on that individuals actual, or perceived, sex. An  employer may be liable if the harassment creates a hostile work environment and the employee suffers an adverse employment decision based on their actual, or perceived, sex. Here, Evans suffered the adverse employment decision of being passed over for a promotion in favor of a less qualified employee who participated in harassing Evans. The Hospital also created a hostile work environment by physically assaulting Evans, and a pattern of harassment that included being insulted, denied equal pay and frequent shift changes.

 

In Evans, the 11th Circuit  denied her claim of sexual orientation discrimination. However, other Circuit Courts have allowed such claims, creating inconsistencies in the Federal Courts. Anti- discrimination laws are designed to protect every employee. Our skilled attorneys at the Derek Smith Law Group, PLLC, are at the forefront of this budding area of law. Our experienced discrimination attorneys are willing to fight in order to protect the rights of every employee, regardless of their sex, or perceived sex. If you believe you have been discriminated based on your sexual orientation, please give us a call, toll-free, at 877-469-5297 for a free consultation to discuss your possible claim based on sexual orientation discrimination.

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