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Supreme Court Leaves Title VII and Sexual Orientation Discrimination Up In the Air

In Evans v. Georgia Regional Hospital, the 11th Circuit Court of Appeals ruled that Title VII did not prohibit discrimination based on sexual orientation. A female security officer had claimed that she was harassed and passed over for promotion because she was homosexual. In reviewing the case, the circuit court stated that it was obligated to follow circuit precedent ruling that such conduct was not proscribed under Title VII.

A Second Circuit panel found itself bound by precedent similar to that of the Evans court and came to the same conclusion. However, the Second Circuit en banc recently reheard argument on that case to determine whether Title VII prohibits sexual orientation discrimination.

The Seventh Circuit Court of Appeals sitting en banc created a clear split when it came to a different conclusion. In Hively v. Ivy Tech Community College, discrimination on the basis of sexual orientation was held to violate Title VII.

With a split among circuits, the Evans case was appealed to the U.S. Supreme Court. On December 11, the Court refused to accept an application to appeal, thus leaving the split among circuits on the issue. Several court watchers are speculating that the Supreme Court may take up the issue after the Second Circuit reaches its decision.