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Eleventh Circuit Makes Clear Title VII Does Not Include Sexual Orientation Discrimination

Until the U.S. Supreme Court has ruled otherwise, the Eleventh Circuit Court of Appeals has found that Title VII does not protect individuals from sexual orientation discrimination.

Jameka Evans, a lesbian, was a security officer at Georgia Regional Hospital from August 2012 until October 2013. During that time, she has alleged that she was discriminated against on the basis of her sex and a target for termination because she did not carry herself in a “traditional woman[ly] manner.” For example, she wore a male uniform and low male haircut. Ms. Evans has also asserted that: a less qualified individual was made her supervisor; that her supervisor tried to make her employment intolerable; that she was asked about her sexuality; that she experienced scheduling issues and shift changes.

Ms. Evans brought two claims, both of which were dismissed by a lower court. First, she alleged that she was discriminated against for her failure to conform to gender stereotypes for women. The lower court contended that this claim was “just another way to claim discrimination based on sexual orientation.” The Eleventh Circuit Court of Appeals overruled that dismissal, holding that discrimination based on gender non-conformity was sex-based discrimination precluded by Title VII and those protections applied to everyone.

In her second claim, Ms. Evans argued that she had been discriminated against based on her sexual orientation. The court of appeals held that Title VII did not protect individuals from sexual orientation discrimination, relying on prior cases in the Eleventh Circuit. In the absence of the Supreme Court squarely addressing whether Title VII prohibited sexual orientation discrimination, the circuit court held that it would not be actionable.