Metro Weekly

Lambda Legal asks SCOTUS to take up lesbian’s employment discrimination case

High court asked to resolve split between circuit courts as to whether Title VII prohibits sexual orientation discrimination

Jameka Evans – Photo courtesy of Lambda Legal.

Lambda Legal is asking the U.S. Supreme Court to take up the case of Jameka Evans, a lesbian security guard who sued her former employer, Georgia Regional Hospital, for discriminating against her.

Evans claims the hospital violated her rights under Title VII of the Civil Rights Act, after she was harassed at work because of her sexual orientation and because she did not conform to female stereotypes in her dress, hairstyle and mannerisms.

A federal court dismissed part of Evans’ lawsuit, saying that Title VII did not protect her as a lesbian.

She appealed to the 11th U.S. Circuit Court of Appeals, arguing that she should be allowed to sue because discrimination based on sexual orientation is a form of sex discrimination.

In March, a three-judge panel on the 11th Circuit rejected Evans’ appeal. Her lawyers, from Lambda Legal, then petitioned for en banc review, in which all currently serving members of the circuit would agree to rehear the case. The appeals court later rejected that request, prompting Lambda Legal to petition the Supreme Court to hear the case.

The 11th Circuit’s decision not to grant an en banc previously found hearing of Evans’ case left a split among circuit courts, as the 7th U.S. Circuit Court of Appeals has found that Title VII’s protections against sex discrimination apply to LGBTQ people.

As a result of multiple lawsuits working their way through the courts, Lambda Legal argues that the Supreme Court should hear the Evans case and resolve, once and for all, whether Title VII applies to LGBTQ people.

“The federal courts of appeals are irreconcilably divided on whether Title VII prohibits sexual orientation discrimination as part of its ban on sex discrimination,” Lambda Legal writes in its motion. “Likewise, the two federal agencies [the Justice Department, siding with the 11th Circuit’s interpretation, and the EEOC, siding with the 7th Circuit’s interpretation] charged with enforcing Title VII have taken opposite positions on whether sexual orientation discrimination is a form of sex discrimination.

“This intractable conflict over the scope of Title VII has created uncertainty for employees and employers alike, compounding pervasive discrimination suffered by lesbian, gay, and bisexual individuals. Only this Court can resolve the disagreement on this important issue, and it is vital that the Court do so now.”

If the court rejects Lambda Legal’s petition, Evans will be forced to defend herself in district court, arguing that her employer discriminated against her based on gender stereotyping — something that courts agree people can sue for under Title VII.

But she would have to prove that it was her lack of gender conformity, and not animus towards her sexual orientation that was the motivation behind her mistreatment, which forces her to “litigate her case with one hand tied behind her back,” Greg Nevins, the director of Lambda Legal’s Employment Fairness Project, tells Metro Weekly.

“There’s a stark split that we think the court should resolve,” Nevins says. “The Supreme Court itself has said that Title VII does provide a remedy for people who are discriminated against, but it especially is there to prevent discrimination from happening in the first place. By far, the best way to do that is to have a clear holding from the Supreme Court that resolves this conflict over Title VII.

“It’s just confusion. And in that confusion, both employers and employees don’t have a clear signal as to what discrimination is already illegal under federal law,” he adds. “And of course, if we’re right, then the courts have been getting it wrong for a long time, and a vulnerable group of employees has been denied statutory protections that they should have had for decades. It’s certainly a compelling case, and I hope the court will view it that way as well.”

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