On December 11, 2017, the United States Supreme Court announced that it will not review a Title VII same-sex discrimination case, on appeal of the Eleventh Circuit’s ruling in Evans v. Ga. Reg’l Hosp., No. 15-15234, 2017 U.S. App. LEXIS 4301 (11th Cir. Mar. 10, 2017). This decision leaves a split in the United States Federal Circuit Courts on the issue of whether or not discrimination on the basis of sexual orientation is made illegal by Title VII of the Civil Rights Act.
The case involved a security guard employed by the Georgia Regional Hospital, Jameka Evans, who alleged that she was subjected to a hostile work environment because of her sexual orientation and non-conformance with stereotypically feminine gender norms. The lower court dismissed Evans’ claim, and the Eleventh Circuit Court of Appeals upheld the ruling, stating that it was bound by its previous 1979 decision that sexual orientation was not covered under Title VII.
Other Circuit Courts have held that sexual orientation is covered under Title VII, so while the Supreme Court will not decide the matter in 2018, it will still likely be decided by the Supreme Court at some point in the future.
The Sixth Circuit Court of Appeals (governing Ohio), has previously ruled that sexual orientation discrimination is not made illegal by Title VII. Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006). However, cases within the Sixth Circuit have found “appearance or mannerisms” or “gender nonconformity” to be illegal gender discrimination under Title VII.
Employers should be mindful of potential litigation, if not liability, that may arise from an adverse employment decision on the basis of an employee’s sexual orientation.
Attorneys at FHKAD routinely advise and defend employers. For more information, contact Marc Fishel at (614) 221-1216 or mfishel@fishelhass.com.