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Title VII doesn’t protect against sexual orientation bias: Appeals court

Title VII doesn’t protect against sexual orientation bias: Appeals court

Title VII of the Civil Rights Act of 1964 does not protect employees from discrimination on the basis of sexual orientation, the 11th U.S. Circuit Court of Appeals in Atlanta said in a divided ruling.

The court also dismissed a claim of discrimination on the basis of gender nonconformity in Friday’s ruling in Jameka K. Evans v. Georgia Regional Hospital, Charles Moss, et al., but invited the plaintiff in the case, a lesbian former hospital security guard, to revise her complaint.

Ms. Evans had worked at Georgia Regional Hospital in Savannah, Georgia, from Aug. 2, 2012, until Oct., 2, 2013, when she left voluntarily, according to the ruling.

She claimed that during her time at the hospital she was denied equal pay or work, harassed, and physically assaulted or battered. She said she was discriminated against on the basis of her sex and targeted for termination for failing to carry herself in a “traditional woman(ly) manner,” said the ruling. 

“Although she is a gay woman, she did not broadcast her sexuality. However, it was ‘evident’ that she identified with the male gender because of how she presented herself,” including with a male uniform, haircut and shoes, the ruling said.

Ms. Evans filed suit against the hospital, charging she was discriminated against because of her sexual orientation and gender nonconformity and retaliation. The US. District Court in Savannah dismissed the case in October 2015, and Ms. Evans appealed. 

On the gender conformity claim, the 11th Circuit ruling states: “Even though we hold ... that discrimination based on gender nonconformity is actionable, Evans’ pro se complaint nevertheless failed to plead facts sufficient to create a plausible inference that she suffered discrimination.”

The ruling says, “In other words … Evans did not provide enough factual matter to plausibly suggest that her decision to present herself in a masculine manner led to the alleged adverse employment actions.” Although it dismisses the claim, the ruling remands this issue so that Ms. Evans can amend her complaint.

The court’s majority opinion upheld, however, dismissal of the charge that she had been discriminated against on the basis of her sexual orientation. “Our binding precedent forecloses such an action,” says the opinion. 

The U.S. Supreme Court’s 1989 ruling in Price Waterhouse v. Hopkins and its 1998 rule in in Oncale v. Sundowner Offshore Services Inc., which held gender nonconformity claims were covered under Title VII, do not support a cause of action for sexual orientation discrimination under that law, said the ruling, which also upheld dismissal of Ms. Evans’ retaliation claim.

The dissenting opinion states previous court rulings, including Price Waterhouse, “demand the conclusion that discrimination because an employee is gay violates Title VII’s proscription of discrimination ‘because of … sex.’”

Rulings by the 7th U.S. Circuit Court of Appeals in Chicago and the 2nd U.S. Circuit Court of Appeals in New York are expected on the issue of whether Title VII protects against sexual orientation discrimination. 

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