On March 10, 2017, a three-judge panel of the U.S. Eleventh Circuit Court of Appeals held in Evans v. Georgia Regional Hospital that Title VII does not prohibit discrimination on the basis of sexual orientation. Accordingly, lower federal courts in Florida, Georgia, and Alabama will be required to follow suit, despite strong opposition, including from the Equal Employment Opportunity Commission, which interprets Title VII to protect against such discrimination.

The facts in Evans are fairly simple. The Plaintiff, a female hospital guard, brought suit against her employer and upper management on the grounds that she was forced to resign because she is a lesbian and did not conform to traditional gender norms. For example, she wore men’s-style clothing and a men’s-style haircut to work. In reaching its holding, the Eleventh Circuit drew a distinction between claims based on sexual orientation (i.e., whether one is attracted to persons of the same sex, the opposite sex, or both) and claims based on gender non-conformity (i.e., whether one behaves in a manner traditionally associated with one’s gender).

According to the Eleventh Circuit, claims based on sexual orientation are not cognizable under Title VII because sexual orientation is not a protected class. To this point, Judge Marinez, in the majority opinion, wrote: “Our binding precedent forecloses such an action. Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) (“Discharge for homosexuality is not prohibited by Title VII . . .). ‘Under our prior precedent rule, we are bound to follow a binding precedent in this Circuit unless and until it is overruled by this court en banc or by the Supreme Court.’” Simply stated, the Evans Court declined to deviate from the nearly 40 year old precedent established by the Fifth Circuit Court of Appeals, the predecessor to the current Eleventh Circuit.

Claims based on gender non-conformity, however, which is distinct from sexual orientation, are actionable under Title VII. For instance, in Glenn v. Brumbly, 663 F.3d 1312, 1316 (11th Cir. 2011), the Eleventh Circuit ruled that Georgia officials had discriminated against a transgender woman by firing her when she confirmed that she was preparing to undergo surgery to become a woman. Apparently, that behavior, while failing to conform to typical gender norms, did not, under the facts of that case, implicate sexual orientation.

In Evans, the Eleventh Circuit relied on the distinction between sexual orientation and gender non-conformity to uphold the dismissal of Plaintiff’s claim that she was forced to resign because she was a lesbian (a sexual orientation claim). However, the three-judge panel remanded the case with instructions to the lower court to allow Plaintiff to amend her complaint to flesh out the claim that she was discriminated against because she wore men’s-style clothing and a men’s-style haircut (a gender non-conformity claim).

With Evans, the Eleventh Circuit has joined every other federal appeals court that has ruled on the issue – including the First, Second, Third, Fourth, Fifth, Sixth, Eighth, Tenth, and D.C. Circuits – in holding that Title VII does not protect individuals against discrimination based on sexual orientation. Nevertheless, employers should be vigilant in guarding against such discrimination. For as Evans shows, the facts underlying a sexual orientation claim can, under perhaps innumerable circumstances, also be plead to support a gender non-conformity claim. Indeed, as Judge Rosenbaum wrote in his partial dissent:

Plain and simple, when a woman alleges, as Evans has, that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer’s image of what women should be – specifically, that women should be sexually attracted to men only.

It is not difficult to imagine a well-crafted complaint blurring the distinction between sexual orientation and gender non-conformity.