The split in the federal appellate courts caused by the Hively decision from the 7th Circuit Court of Appeals over whether Title VII protections include sexual orientation has landed at the Supreme Court of the United States.
Lambda Legal filed a petition for writ of certiorari Thursday, asking the nine justices to review the decision from the 11th Circuit which held Title VII of the Civil Rights Act of 1964 does not prohibit discrimination against gays and lesbians. The ruling came just weeks before the 7th Circuit reached the opposite conclusion in Hively v. Ivy Tech., 853 F.3d 339 (7th Cir. 2017)(en banc).
In its petition, Lambda Legal asserts the 11th Circuit’s decision in Jameka K. Evans v. Georgia Reginal Hospital, et al., is wrong. The organization maintains that neither the absence of the explicit phrase “sexual orientation” in Title VII nor congressional inaction to add that provision to the statute undercuts the argument that discriminating on the basis of sexual orientation is the same as discriminating because of the individual’s sex.
“When (the Supreme Court) ‘held in Lawrence [that] same-sex couples have the same right as opposite-sex couples to enjoy intimate association,’” Lambda Legal wrote in its petition, “…it was squarely articulating a fundamental basis for holding that discrimination against lesbian, gay, and bisexual people is sex discrimination: it denies them rights due to their sex and the sex of the person with whom they form a couple.”
Jameka Evans, the petitioner in the 11th Circuit case, filed a Title VII complaint against her former employer Georgia Regional Hospital in Savannah, Georgia, claiming she was harassed, punished and passed over for a promotion because of her sexual orientation. She described herself as a gay female who presented herself at work in stereotypically “male” ways. She wore male clothes and shoes and kept her hair cut short.
The 11th Circuit split, with Judge Robin Rosenbaum finding Title VII protections do extend to sexual orientation. However, the court denied Evans’ petition for a rehearing en banc.