Supreme Court Denies Certiorari in Case Presenting Question of Whether Title VII’s Prohibition on Sex Discrimination Encompasses Sexual Orientation Discrimination

Court’s Decision to Deny Cert in Evans v. Georgia Regional Hospital Currently Leaves Seventh Circuit Split from All Other Circuits December 12, 2017
On December 11, 2017, the Supreme Court denied certiorari in Evans v. Georgia Regional Hospital, which presented the question of “[w]hether the prohibition in Title VII of the Civil Rights Act of 1964 against employment discrimination ‘because of . . . sex’ encompasses discrimination based on an individual’s sexual orientation.”  In Evans, a security guard alleged that she was harassed by her supervisors and passed over for a promotion because of her status as a gay female in violation of Title VII.

Until earlier this year, every federal court of appeals to address this issue had held that Title VII does not protect employees against discrimination based on their sexual orientation.  In Evans, the Eleventh Circuit agreed with the majority approach that “[d]ischarge for homosexuality is not prohibited by Title VII.”  850 F.3d 1248 (11th Cir. 2017).

On April 4, 2017, however, the Seventh Circuit, sitting en banc in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017), overturned its precedent and held that Title VII prohibits sexual orientation discrimination because “the common sense reality [is] that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.”  The decision created a circuit split on the issue.

Earlier this year, in a concurring opinion to Christiansen v. Omnicom Group, Inc., 852 F.3d 195 (2d Cir. 2017), Chief Judge Katzmann called for the Second Circuit to “revisit” its precedent that sexual orientation discrimination is not forbidden by Title VII.  The court agreed to revisit the question en banc in Zarda v. Altitude Express, Inc., No. 15-3775, and heard oral argument on September 26, 2017.  In Zarda, both the EEOC and Department of Justice filed amicus briefs and participated in oral argument.  The EEOC contended that claims of sexual orientation discrimination “fall squarely within Title VII’s prohibition against discrimination on the basis of sex,” while the DOJ argued that it has been “settled for decades” that Title VII does not prohibit sexual orientation discrimination.  The Second Circuit has not yet issued its decision.

At the moment, the Seventh Circuit is the only court of appeals to hold that sexual orientation discrimination is prohibited by Title VII.  If Zarda follows suit, the Supreme Court may be presented with another opportunity to address the question.

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