Court declines to rehear sex orientation discrimination case

July 6, 2017

A federal appeals court has declined to reconsider its own ruling that employers aren't prohibited from discriminating against employees because of sexual orientation.

Jameka Evans sued Georgia Regional Hospital in Savannah, Georgia, saying she was effectively forced out of her security guard job because she's a lesbian.

In March, a three-judge panel of the 11th U.S. Circuit Court of Appeals ruled that a 1964 civil-rights law doesn't protect against workplace discrimination based on sexual orientation. The ruling was 2-1, with the majority saying the court was bound by precedent set in 1979. The dissenting judge, however, said a 1989 U.S. Supreme Court ruling prohibiting discrimination because someone doesn't conform to gender stereotypes would apply.

Evans' attorneys had asked the full Atlanta-based court to rehear the case. The court denied the request on Thursday.

Other federal appeals courts are dealing with this issue. The 7th Circuit Court of Appeals in Chicago was the first to upended its own precedent in April 2017 with the majority finding discrimination because of sexual orientation is barred by the civil rights provision.

The 7th Circuit then remanded the case, Hively v. Ivy Tech, 15-1720, to the district court of Northern Indiana. Judge Jon DeGuilio and Magistrate Judge Michael Gotsch are assigned to the case.

Kimberly Hively sued Ivy Tech, claiming it denied her full-time employment and promotions because she is a lesbian. The federal court ruled against her, as did the 7th Circuit initially, but then overturned its decision after an en banc hearing in April.

The 2nd Circuit has scheduled the rehearing in Zarda v. Altitude Express, Inc., 15-3775, for Sept. 26 at the Thurgood Marshall United States Courthouse in New York City.

Donald Zarda, a skydiving instructor, filed a Title VII lawsuit after he was fired from Altitude Express, claiming he was dismissed because he was gay. Zarda has since died, but his relatives are continuing with the complaint.

The 2nd Circuit panel that initially heard Zarda’s case dismissed the complaint because precedent holds that Title VII does not cover sexual orientation. Zarda’s attorney, Gregory Antollino, then filed a petition for a rehearing en banc, which the appellate court granted on May 25.


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