Roberts Court Kicks the Can on Employment Discrimination Based on Sexual Orientation

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Analysis Law and Policy

Roberts Court Kicks the Can on Employment Discrimination Based on Sexual Orientation

Jessica Mason Pieklo

The U.S. Supreme Court just declined to clear up whether Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual orientation.

The U.S. Supreme Court on Monday declined to take up the case of Jameka Evans, a Savannah, Georgia security guard who alleged she was harassed at work and forced out of her job because she is a lesbian. The decision leaves in place an appeals court ruling holding that sexual orientation discrimination is not covered by federal employment discrimination laws and potentially sets the stage for a future Supreme Court fight on the issue.

In April 2015, Evans filed a lawsuit in a federal court against her former employer, Georgia Regional Hospital. Evans alleged that the hospital violated Title VII of the Civil Rights Act of 1964 by discriminating against her because of her sexual orientation and her nonconformity with gender norms of appearance and demeanor. The district court dismissed the case, ruling that Title VII did not cover her claims.  Then in January 2015, Lambda Legal filed an appeal on Evans’ behalf, arguing the lower court was wrong to dismiss the case. Its attorneys argued that several federal district courts and the Equal Employment Opportunity Commission (EEOC) have all found that sexual orientation discrimination is a form of sex discrimination. 

On March 10, 2017, a three-judge panel of the Eleventh Circuit held that prior precedent gave them no choice but to reject Evans’ sexual orientation discrimination claim, holding that Title VII doesn’t reach as far as covering claims for discrimination on the basis of sexual orientation until the Supreme Court says it does. Attorneys from Lambda Legal then asked the whole court to rehear the case to re-examine that conclusion. The Eleventh Circuit declined the request, so Evans’ attorneys appealed to the U.S. Supreme Court, which declined their request as well. Evans has effectively been left with no legal remedy.

Federal courts are split as to whether, and to what extent, Title VII’s ban on sex discrimination permits an employer to discriminate against lesbian, gay, and bisexual people based on their sexual orientation. Earlier this year, the Seventh Circuit based its ruling on “[t]he logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.” Also earlier this year, the majority of judges on a Second Circuit panel determined that sexual orientation discrimination is sex discrimination. The Second Circuit has also granted en banc review in another case addressing the same issue. Other courts of appeals have come to similar conclusions as those cases work their way through the federal courts. The Supreme Court’s denial of review in Evans’ case leaves that circuit split between the Eleventh Circuit and other federal courts of appeals in place.

Roe is gone. The chaos is just beginning.

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Normally a circuit split like the kind regarding the question of Title VII’s reach makes a case a good candidate for Supreme Court review. But Evans’ case has a somewhat complicated procedural history, and that might explain why the Court declined to step into the fight at this time. Similar to the Gavin Grimm case (which the Supreme Court eventually returned to the Fourth Circuit Court of Appeals rather than hear arguments on the merits of Grimm’s claim that Title IX of the Education Amendments Act of 1972 reached discrimination on the basis of being transgender), Evans’ case came up to the Court on a motion to dismiss. Unlike a motion for summary judgment where the trial court looks at all the evidence gathered during the investigation portion of a lawsuit, a motion to dismiss is a determination by the court, based only on what is alleged in the complaint, that a plaintiff’s claim cannot proceed. So it could be that the Court wants the differences in decisions to be more firmly ensconced in the law, which would give the Court more substantive analysis to work through. 

Of course the Court rarely, if ever, explains its decision to not hear a case. So like a lot of actions the Court takes, it is anybody’s guess as to why it acted the way they did. 

But the Court can’t avoid this issue for long. As Greg Nevins, director of Lambda Legal’s Employment Fairness Project, said in a statement following the Court’s denial, it was “not a ‘no’ but a ‘not yet.’” 

And it is a fight the far right and Trump administration are intent on exacerbating—and winning. In a concurring opinion, Eleventh Circuit judge and rumored Trump Supreme Court short-lister William Pryor separately defended the court’s ruling that Title VII does not cover discrimination based on sexual orientation. According to Judge Pryor, Title VII prohibits discriminating against someone because their “behavior” does not conform to sex stereotypes, but the statute does not preclude discrimination based on the “status” of being lesbian, gay, or bisexual.

This is an argument identical to that of the Trump administration, which has taken a position that is directly in conflict with the EEOC by declaring through an amicus brief that the Department of Justice does not believe Title VII prohibits sexual orientation discrimination. It’s a position Solicitor General Noel Francisco more-or-less advocated for during oral arguments in Masterpiece Cakeshop, a case that could create a religious exemption from complying with state nondiscrimination laws. And it was a position that Justices Samuel Alito, Neil Gorsuch, Clarence Thomas, and Chief Justice John Roberts were very sympathetic to during those arguments.

Which means that once again, the future of LGBTQ civil rights likely rests in the palms of Justice Anthony Kennedy so long as he remains on the bench. During oral arguments in Masterpiece Bakeshop, he appeared genuinely conflicted by his sympathy toward religious evangelicals and his legacy of advancing, even incrementally, LGBTQ equality. Kennedy may offer some hints as to how he resolves this inner conflict later this summer when the Court issues its ruling in Masterpiece Cakeshop, but even that is no guarantee. The only certainty is that the Trump administration is dead set on packing the courts with ideologues to force the law away from Kennedy’s LGBTQ jurisprudence and toward Pryor’s.