11th Circuit won’t rehear Title VII ruling on sexual orientation

The 11th U.S. Circuit Court of Appeals in Atlanta on Thursday refused to reconsider a ruling in which it held that Title VII of the Civil Rights Act of 1964 does not protect employees from discrimination on the basis of sexual orientation.

In its 2-1 ruling in March in Jameka K. Evans v. Georgia Regional Hospital, Charles Moss et al., the appeals court dismissed litigation filed by a lesbian former hospital security guard who had claimed she was denied equal pay or work, harassed and physically assaulted or battered.

Ms. Evans had filed suit against the hospital, charging she was discriminated against because of her sexual orientation and gender nonconformity and retaliated against when she complained. The U.S. District Court in Savannah, Georgia, dismissed the case in October 2015, which the appeals court affirmed.

In Thursday’s ruling, the appeals court denied a petition to rehear the case or for an en banc rehearing.

In April, in a ground-breaking ruling, the 7th U.S. Circuit Court of Appeals in Chicago held in Kimberly Hively v. Ivy Tech Community College that sexual orientation is protected under Title VII.

That case was filed by a lesbian instructor who claimed she was rejected for six full-time positions between 2009 and 2014 by Valparaiso, Indiana-based Ivy Tech and that in July 2014 her part-time contract was not renewed.

Experts have said the circuit split makes it likely the issue will eventually be considered by the U.S. Supreme Court.

Meanwhile, oral arguments are scheduled for September before the en banc 2nd U.S. Circuit Court of Appeals in New York in Melissa Zarda et al. v. Altitude Express, a case where Donald Zarda, a gay skydiver, sued his former employer, Calverton, New York-based Altitude Express Inc., alleging he was fired from his job as a skydiving instructor because of his sexual orientation.

 A jury in the U.S. District Court in Central Islip, New York, reached a verdict in the employer’s favor on the state law claim in the case, but the court refused to hold that discrimination based on sexual orientation was barred by Title VII. (Mr. Zarda died in a skydiving accident before the case went to trial, and two executors of his estate replaced him as plaintiff.)

A three-judge 2nd Circuit panel said it did not have the authority to overturn circuit precedent on the issue in April. The appeals court agreed to hear the case en banc in May.