The U.S. Supreme Court announced on December 11 that it will not review a decision by a three-judge panel of the Atlanta-based 11th Circuit Court of Appeals, which ruled on March 10 that a lesbian formerly employed as a security guard at a Georgia hospital could not sue for sexual orientation discrimination under Title VII of the Civil Rights Act of 1964. The full 11th Circuit denied a motion to reconsider the case on July 10, and Lambda Legal, representing plaintiff Jameka Evans, filed a petition with the Supreme Court seeking review on September 7. Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), rehearing en banc denied, 7/6/2017, cert. denied, 2017 WL 4012214 (12/11/2017).
At the heart of Lambda’s petition was an urgent request to the Court to resolve a split among the lower federal courts and within the federal government itself on the question whether Title VII, which bans employment discrimination because of sex by employers that have at least 15 employees, can be interpreted to ban discrimination because of sexual orientation.
Nobody can deny that members of Congress voting on the Civil Rights Act in 1964 were not thinking about banning sexual orientation discrimination at that time, but their adoption of a general ban on sex discrimination in employment has been developed by the courts over more than half a century to encompass a wide range of discriminatory conduct reaching far beyond the simple proposition that employers cannot discriminate against an individual because she is a woman or he is a man.
Early in the history of Title VII, the Supreme Court ruled that employers could not treat people differently because of generalizations about men and women, and by the late 1970s had accepted the proposition that workplace harassment of women was a form of sex discrimination. In a key ruling in 1989, the Court held that discrimination against a woman because the employer considered her inadequately feminine in her appearance or behavior was a form of sex discrimination, under what was called the sex stereotype theory, and during the 1990s the Court ruled that a victim of workplace same-sex harassment could sue under Title VII, overruling a lower court decision that a man could sue for harassment only if he was being harassed by a woman, not by other men. In that decision for a unanimous court, Justice Antonin Scalia opined that Title VII was not restricted to the “evils” identified by Congress in 1964, but could extend to “reasonably comparable evils” to effectuate the legislative purpose of achieving a non-discriminatory workplace.
By the early years of this century, lower federal courts had begun to accept the argument that the sex stereotype theory provided a basis to overrule earlier decisions that transgender people were not protected from discrimination under Title VII. There is an emerging consensus among the lower federal courts, bolstered by rulings of the Equal Employment Opportunity Commission (EEOC), that gender identity discrimination is clearly discrimination because of sex, and so the 11th Circuit Court of Appeals ruled several years ago in a case involving a transgender woman fired from a research position at the Georgia legislature.
However, the idea that some variant of the sex stereotype theory could also expand Title VII to protect lesbian, gay or bisexual employees took longer to emerge. It was not until 2015 that the EEOC issued a decision in the Baldwin case concluding that sexual orientation discrimination is a form of sex discrimination, in part responding to the sex stereotype decisions in the lower federal courts. And it was not until April 4 of this year that a federal appeals court, the Chicago-based 7th Circuit Court of Appeals, approved that theory in a strongly worded opinion by a decisive majority of the entire 11-judge circuit bench, just a few weeks after the 11th Circuit panel ruling in the Jameka Evans case. Writing for the 7th Circuit in the Hively case, Judge Diane Wood said, “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’”
The 11th Circuit panel’s 2-1 decision to reject Jameka Evans’ sexual orientation discrimination claim seemed a distinct setback in light of these developments. However, consistent with the 11th Circuit’s prior gender identity discrimination ruling, one of the judges in the majority and the dissenting judge agreed that Evans’ Title VII claim could be revived using the sex stereotype theory based on how she dressed and behaved, and sent the case back to the lower court on that basis. The dissenting judge would have gone further and allowed Evans’ sexual orientation discrimination claim to proceed under Title VII. The other judge in the majority strained to distinguish this case from the circuit’s prior sex stereotype ruling, and would have dismissed the case outright.
The 7th Circuit’s decision in April opened up a split among the circuit courts in light of a string of rulings by several different circuit courts over the past several decades rejecting sexual orientation discrimination claims by gay litigants, although several of those circuits have since embraced the sex stereotype theory to allow gay litigants to bring sex discrimination claims under Title VII if they could plausibly allege that they suffered discrimination because of gender nonconforming dress or conduct. Other courts took the position that as long as the plaintiff’s sexual orientation appeared to be the main reason why they suffered discrimination, they could not bring a Title VII claim.
In recent years, several federal trial judges have approved an alternative argument: that same-sex attraction is itself a departure from widely-held stereotypes of what it means to be a man or a woman, and thus that discrimination motivated by the victim’s same-sex attraction is a form of sex discrimination under Title VII. Within the New York-based 2nd Circuit, several trial judges have recently embraced this view, but three-judge panels of the Court of Appeals consistently rejected it. Some progress was made last spring, however, when a three-judge panel in Christiansen v. Omnicom Group overruled a trial judge to find that a plaintiff whose sexual orientation was clearly a motivation for his discharge could bring a sex stereotype Title VII claim when he could plausibly allege behavioral nonconformity apart from his same-sex attraction.
More recently, however, the 2nd Circuit agreed to grant en banc reconsideration to the underlying question and heard oral argument in September in Zarda v. Altitude Express on whether sexual orientation discrimination, as such, is outlawed by Title VII. That case involved a gay male plaintiff whose attempt to rely alternatively on a sex stereotype claim had been rejected by the trial judge in line with 2nd Circuit precedent. Plaintiff Donald Zarda died while the case was pending, but it is being carried on by his Estate. Observers at the oral argument thought that a majority of the judges of the full circuit bench were likely to follow the lead of the 7th Circuit and expand the coverage of Title VII in the 2nd Circuit (which covers Connecticut, Vermont and New York). With argument having been held more than two months ago, a decision could be imminent.
Much of the media comment about the Zarda case, as well as the questioning by the judges, focused on the spectacle of the federal government opposing itself in court. The EEOC filed an amicus brief in support of the Zarda Estate, and sent an attorney to argue in favor of Title VII coverage. The Justice Department filed a brief in support of the employer, and sent an attorney to argue that the three-judge panel had correctly rejected the plaintiff’s Title VII claim. The politics of the situation was obvious: The Trump appointees now running the Justice Department had changed the Department’s position (over the reported protest of career professionals in the Department), while the holdover majority at the EEOC was standing firm by the decision that agency made in 2015. As Trump’s appointment of new commissioners changes the agency’s political complexion, this internal split is likely to be resolved against Title VII protection for LGBT people.
This is clearly a hot controversy on a question with national import, so why did the Supreme Court refuse to hear the case? The Court does not customarily announce its reasons for denying review, and did not do so this time. None of the justices dissented from the denial of review, either.
A refusal to review a case is not a decision on the merits by the Court, and does not mean that the Court approves the 11th Circuit Court of Appeals’ decision. It is merely a determination by the Court, which exercises tight control over its docket, not to review the case. Hypothesizing a rationale, one might note that the plaintiff here has not suffered a final dismissal of her case, having been allowed by the 11th Circuit to file an amended complaint focusing on sex stereotype instead of sexual orientation, so she can still have her day in court and there is no pressing need for the Court to resolve the circuit split in her case. One might also note that Georgia Regional Hospital did not even appear before the 11th Circuit to argue its side of the case, and did not file papers opposing Lambda Legal’s petition until requested to do so by the Court.
On October 11, the Supreme Court Clerk’s office distributed the Lambda petition and some amicus briefs supporting it to the justices in anticipation of their conference to be held October 27. The lack of a response by Georgia Regional Hospital evidently sparked concern from some of the justices, who directed the Clerk to ask the Hospital to file a response, which was filed by Georgia’s Attorney General on November 9, and the case was then put on the agenda for the Court’s December 8 conference, at which the decision was made to deny review. The responsive papers argued, among other things, that the Hospital had not been properly served with the Complaint that initiated the lawsuit. Those kinds of procedural issues sometimes deter the Court from taking up a case.
For whatever reason, the Court has put off deciding this issue, most likely for the remainder of the current Term. The last argument day on the Court’s calendar is April 25, and the last day for announcing decisions is June 25. Even if the 2nd Circuit promptly issues a decision in the Zarda case, the losing party would have a few months to file a petition for Supreme Court review, followed by a month for the winner filing papers responding to the Petition. Even if the Court then grants a petition for review, thus starting the clock running for filing merits briefs and amicus briefs, it is highly likely that once all these papers are submitted, it will be too late in the Term for the case to be argued, so it would end up on the argument calendar for Fall 2018.
Which raises the further question of who would be on the Court when this issue is finally before it? Rumors of retirements are rife, and they center on the oldest justices, pro-LGBT Ruth Bader Ginsburg and conservative but generally pro-gay Anthony Kennedy. If President Trump gets to nominate successors to either of them, the Court’s receptivity to gay rights arguments is likely to be adversely affected.