ELEVENTH CIRCUIT BARS TITLE VII SEXUAL ORIENTATION CLAIMS
Labor & Employment Law Section
Continued from page 46
Circuit in Hively concluded that
Title VII’s prohibition against
sex discrimination includes sexual
orientation discrimination. The
Seventh Circuit grounded its
decision on the landmark Supreme
Court case Price Waterhouse v.
Hopkins, stating that “common-
sense reality [makes it] actually
impossible to discriminate on the
basis of sexual orientation without
discriminating on the basis of
sex.” 853 F.3d at 350 - 51.
Despite the Seventh Circuit’s
groundbreaking decision in Hively,
the Eleventh Circuit, in Evans,
adhered to binding precedent and
held that claims based on sexual
orientation are not actionable
under Title VII. In that case, an
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employee filed a Title VII claim
against her employer based on
sexual orientation and gender
nonconformity. The district court
dismissed the sexual orientation
claim, and the Eleventh Circuit
affirmed. In support of its ruling,
the Eleventh Circuit followed
precedent holding that “discharge
for homosexuality is not
prohibited by Title VII.” Evans,
850 F.3d at 1255 (quoting Blum
v. Gulf Oil Corp., 597 F.2d 936,
938 (5th Cir. 1979)). Notably,
the court recognized that gender
nonconformity remained a viable
claim under Price Waterhouse
because such claims are based
on sex.
After Evans was decided, the
plaintiff moved the court to
rehear the case en banc, citing the
Hively decision. In July 2017, the
Eleventh Circuit put the issue to
rest when it denied the plaintiff ’s
petition to rehear the case en banc.
As a result, the Eleventh Circuit has,
for now, foreclosed claims of Title
VII sexual orientation brought in
Florida. The circuit split has set
the stage for the Supreme Court
to resolve the issue once and for all.
But, until then, Evans makes clear
that Florida employees cannot bring
Title VII claims
based strictly
on sexual
orientation.
Author:
Matthew S.
Perez - Phelps
Dunbar LLP
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