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Supreme Court kicks matter of sexual orientation bias down the road

Supreme Court kicks matter of sexual orientation bias down the road

The U.S. Supreme Court last week refused to consider an appellate court ruling on the issue of whether Title VII of the Civil Rights Act of 1964 protects employees from discrimination on the basis of sexual orientation, but it is only a matter of time before it does so, experts agree.

Less clear is how the court is likely to rule on the issue once it does agree to consider it.

The high court issued its denial of certiorari in Jameka K. Evans v. Georgia Regional Hospital on Dec. 11. Ms. Evans had claimed in her lawsuit that she was denied equal pay or work, harassed and physically assaulted or battered while at her job as a security guard at Georgia Regional Hospital in Savannah. 

The 11th U.S. Circuit Court of Appeals in Atlanta ruled against her in March, then subsequently refused to reconsider the case en banc.

The ruling conflicts with the 7th U.S. Circuit Court of Appeals in Chicago’s ruling in April in Kimberly Hively v. Ivey Tech Community College, which held sexual orientation is protected under Title VII.

Other cases on the issue include Melissa Zarda et al. v. Altitude Express, 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 instruction because of his sexual orientation.

A three-judge panel of the 2nd U.S. Circuit Court of Appeals in New York said it did not have the authority to overturn circuit precedent on the issue in April, but the appeals court agreed to hear the case en banc in May.

Also on March 27, in Anonymous, Matthew Christiansen v. Unicom Group et al., a three-judge panel of the 2nd Circuit ruled in favor of a gay plaintiff — but on the basis of gender stereotyping discrimination, not because of sexual orientation. The appellate court has also agreed to reconsider that case en banc.

The Supreme Court “may be waiting to see what the other courts of appeal do with cases that are currently pending,” said Mark T. Phillis, a shareholder with Littler Mendelson P.C. in Pittsburgh.

Sam Schwartz-Fenwick, a partner with Seyfarth Shaw L.L.P. in Chicago, agreed. “I think they want the issue to play out more in the courts of appeal. I think there’s a concern with the Supreme Court wading into the scope of Title VII, that they very much don’t want to be setting the standard. They want to see more of what other courts are doing before they weigh in.”

Some observers say a procedural issue with the Evans case may have been a factor in the Supreme Court’s decision not to take it. In a letter to a Supreme Court clerk, Georgia’s solicitor general said the hospital had not been properly served in the litigation.

Observers generally agree, however, that at some point the Supreme Court will consider the issue of whether Title VII protects against sexual discrimination on the basis of sexual orientation.

“It’s ripe for a decision” because the U.S. District Courts are “just all over the map” in interpreting the issue, and now there is a split between the 11th and 7th Circuits, said Evan Gibbs, an associate with Troutman Sanders L.L.P. in Atlanta.

“Besides that, obviously, it’s a big issue for American society at this point,” he said. “People want this case resolved.”

“There is the potential that this will reach a critical mass, where the court may have no choice but to make a ruling,” said Mark Fijman, counsel at law firm Phelps Dunbar L.L.P. in Jackson, Mississippi.

Observers disagree, though, as to how the court is likely to rule on the issue.

Paul E. Starkman, a member of law firm Clark Hill P.L.C. in Chicago, pointed to strict constructionism — the philosophy of interpreting or construing the law and the U.S. Constitution while strictly adhering to the text exactly as it is written.

“I think you’re going to be seeing not only strict constructionism of the Supreme Court, but they’re going to be looking at it from the drafters’ intent, and whether or not there’s any indication that at the time that Title VII was passed” Congress intended it to protect against sexual orientation discrimination. “Obviously, I don’t think they even considered it at that point,” he said.

“My best bet is the Supreme Court is viewing Title VII as written, and it would seem they prefer that it’s a revision to Title VII that needs to be made by Congress, and not the courts,” said Mr. Fijman.

However, Sidney O. Minter, an associate with Fisher & Phillips L.L.P. in Charlotte, North Carolina, said he believes the court will rule sexual orientation is covered by Title VII.

He pointed to the Supreme Court’s ruling in the Hively case, “which basically said, ‘How can you have sexual orientation discrimination and not have sex discrimination?’”

Experts also say two previous Supreme Court rulings argue in favor of the high court finding sexual orientation discrimination is covered by Title VII: the high court’s 1989 ruling in Price Waterhouse vs. Hopkins, which held a plaintiff can rely on gender-stereotyping evidence to show that discrimination occurred; and its 1998 ruling in Oncale v. Sundowner Offshore Services Inc. et al., in which it held that sexual harassment discrimination charges can be made when the plaintiff and defendant are of the same sex.

“I do think it would benefit everybody to have consistency and certainty, no matter what the ruling is, so I hope that they take it up soon,” said Julie Furer Stahr, a partner with Schiff Hardin L.L.P. in Chicago.





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