Appeals Court Refuses To Extend Title VII Coverage To Sexual Orientation

by Fisher Phillips

Fisher Phillips

Workers Left Waiting For Groundbreaking Decision

On Friday, the 11th Circuit Court of Appeals declined to extend Title VII’s protections to sexual orientation discrimination, but reinforced that employees may allege sex discrimination claims when they face workplace discrimination for failing to conform to gender norms. The court confirmed that employees, regardless of sexual orientation, can sue under the flagship federal civil rights statute to seek relief for harassment, discrimination, and retaliation, but only if the discrimination is related to alleged gender nonconformity. While the decision does not signal a significant change in the law, it stands as a reminder to employers that sex discrimination claims can manifest in various ways (Evans v. Georgia Regional Hospital).

Background: What Does “Because of Sex” Really Mean?

The intended purpose of Title VII of the Civil Rights Act of 1964 was to protect employees from race discrimination in the workplace. In a late amendment, Congress added “sex” to the list of protected categories.

While federal courts initially interpreted “because of sex” narrowly, courts have broadened the definition over the decades. In a milestone 1989 decision, the United States Supreme Court found sex discrimination where an employer took issue with a female employee’s lack of femininity (Price Waterhouse v. Hopkins).

Following the landmark 2015 Supreme Court decision that made same-sex marriage legal across the country, Obergefell v. Hodges, federal courts have grappled with determining whether Title VII covers discrimination or harassment claims on the basis of sexual orientation. Meanwhile, the Equal Employment Opportunity Commission (EEOC) issued a July 2015 administrative decision ruling that “sexual orientation is inherently a ‘sex-based consideration’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII ” (Baldwin v. Foxx).

Although the EEOC’s decision was binding only on federal employers, other lower federal courts have discussed the rationale behind the agency’s conclusion and seem ready to adopt the same approach in the private sector. On November 4, 2016, in fact, the U.S. District Court for the Western District of Pennsylvania agreed with the EEOC and held that sexual orientation falls within the protection of Title VII (EEOC v. Scott Medical Center). No federal appellate court, however, has yet gone that far.

Employee Loses The First Round Before It Started

Jameka K. Evans worked as a security office for Georgia Regional Hospital. Representing herself, she filed a federal lawsuit alleging her supervisor terminated her because she is lesbian. She also alleged that she was harassed and otherwise punished for failing to conform to her department head’s gender stereotypes. She asked the court to hold Georgia Regional Hospital and three individuals “liable for discriminating against her based on her sex as a gay female in violation of Title VII.”

Before the defendants were even served with the lawsuit, the lower court held that her claims were not actionable because “homosexuality is not a protected class under Title VII.” It further held that a claim of discrimination on the basis of gender non-conformity is simply a difference without a distinction – specifically, that it is “just another way to claim discrimination based on sexual orientation,” which it would not allow. The court dismissed her lawsuit with no opportunity to amend her complaint.

After the dismissal, Evans sought representation by a non-profit organization advocating for LGBT civil rights. With the assistance of new counsel, Evans appealed the district court’s ruling to the 11th Circuit Court of Appeals. 

Employee Wins Next Round, Although Court Does Not Extend LGBT Protections

Late last week, the court of appeals struck down the portion of the trial court’s decision dismissing Evans’ gender non-conformity claim. The 11th Circuit remanded the case to the trial court with instructions to allow Evans to amend and pursue that claim, drawing a fine line between sex discrimination and sexual orientation discrimination.

The court agreed, under Price Waterhouse v. Hopkins and 11th Circuit precedent, employees are permitted to bring a claim for sex discrimination based on a failure to conform to a gender stereotype. Two of the three-judge panel, however, disagreed that this theory extends to individuals who are discriminated against on the basis of their sexual orientation. Citing a 1979 court decision, the majority held that sexual orientation discrimination is still not actionable under Title VII.

Evans’ attorney has already stated they will seek an en banc rehearing from the full 11th Circuit Court of Appeals, so we may not have yet heard the last from this court on this issue.

What This Means for Employers

Employers in Georgia, Alabama, and Florida – the states covered by the 11th Circuit’s ruling – should consider how their policies and practices may impact individuals whose gender expression does not align with their sex. In doing so, you should review your policies, handbooks, training, workplace investigations, hiring methods, discipline and discharge procedures, revising any as necessary.

While the 11th Circuit declined to expand Title VII to include discrimination on the basis of sexual orientation, the full court may decide to rehear this issue and could reverse the key ruling. Meanwhile, it appears likely that other circuit courts could soon make that leap.

Several other cases are bubbling up in various jurisdictions, including a highly watched case in the 7th Circuit Court of Appeals (hearing cases from Illinois, Indiana, and Wisconsin) argued in November 2016, and a similar case in the 2nd Circuit Court of Appeals (New York, Connecticut, and Vermont) argued on January 20, 2017. It will come as no surprise to those following this issue if these and other federal appeals courts take the plunge that the 11th Circuit declined to take. As a result, many employers across the country are extending protections to LGBT employees in anticipation of the possible change.

Even if other appeals courts share the 11th Circuit’s hesitation, employers could still face liability under state laws. Almost half the states have laws prohibiting sexual orientation discrimination in employment (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Washington, and Wisconsin), and some additional states protect state workers from such discrimination (Alaska, Arizona, Indiana, Kentucky, Louisiana, Michigan, Missouri, Montana, North Carolina, Ohio, Pennsylvania, and Virginia).

Additionally, plaintiffs who bring sex discrimination claims under Title VII based on a gender non-conformity theory are now emboldened by today’s ruling. Courts have noted that drawing a line that separates these “sex-stereotyping” claims from pure sexual orientation claims is “exceptionally difficult” because the distinction is often “elusive.” This means employers anywhere could face a Title VII claim akin to a sexual orientation discrimination claim, and it is likely a federal court would view such a claim as valid, no matter what the appeals courts say about sexual orientation claims.

While the U.S. Supreme Court or Congress may step in and clarify once and for all whether sexual orientation discrimination claims are covered under Title VII, as Judge Rosenbaum wrote in her dissenting opinion, “it is time that we, as a court, recognized that Title VII prohibits discrimination based on an employee’s sexual orientation since that is discrimination ‘because of . . . sex.’” Employers should take heed and prepare for what appears to be an inevitable extension of workplace protection rights for LGBT workers based on their sexual orientation.

Written by:

Fisher Phillips

Fisher Phillips on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.