Metro Weekly

Georgia county asks Supreme Court not to hear case on whether it unlawfully fired a gay employee

Clayton County doesn't want the Supreme Court to consider the split in federal courts over whether Title VII protects against discrimination based on sexual orientation

U.S. Supreme Court – Credit: Davis Staedtler/flickr

Attorneys for a Georgia county are asking the Supreme Court to refuse to hear the case of a former employee who believes he was discriminated against for being gay.

Jack Hancock and Williams Buechner, Jr., of the law firm Freeman Mathis & Gary, have asked the court to allow a decision by the Atlanta-based 11th U.S. Circuit Court of Appeals to stand, according to Law.com’s Daily Report.

The 11th Circuit upheld a lower court’s ruling dismissing a lawsuit brought by Gerald Bostock, a former child welfare services coordinator for the Clayton County juvenile court system, who alleges he was fired due to his sexual orientation.

The county’s lawyers argue that federal civil rights laws do not prohibit discrimination based on sexual orientation. In doing so, they urge the court to ignore at least two other circuit courts who have issued rulings contrary to the rationale used by the 11th Circuit in its decision.

Bostock claims the county fired him after supervisors found out that he was playing in a gay recreational softball league, which prompted them to launch an internal audit of county funds he managed in order to justify his termination. He was subsequently fired for “conduct unbecoming a county employee.”

The county has claimed that Bostock’s termination was legitimate and was unrelated to his sexual orientation.

When Bostock sued, his lawsuit was dismissed by a magistrate judge who ruled that Title VII does not explicitly protect discrimination based on a person’s sexual orientation.

The 11th Circuit upheld the lower court’s decision, and subsequently denied Bostock’s petition for an en banc review of the case, in which all sitting members of the court would rehear the case and determine whether Bostock had cause to sue.

In July, the appeals court took the unusual step of rejecting a motion from its own bench calling for an en banc hearing in the case, despite dissents by Judges Robin Rosenbaum and Jill Pryor.

Bostock then petitioned the Supreme Court to take up his case, noting that there is a split among various federal circuit courts as to whether federal law protects people who have been discriminated against based on their sexual orientation.

The New York-based 2nd Circuit, and the Chicago-based 7th Circuit have both ruled in separate cases that sexual orientation discrimination constitutes a form of sex discrimination, and should therefore be prohibited under Title VII.

Bostock, and his lawyers from Atlanta law firm Buckley Beal, argue that the Supreme Court needs to resolve this split in order to provide clarity on how Title VII should be interpreted by federal and local courts.

But Hancock and Buechner argue in their response that the high court has previously turned away cases despite splits in the circuit over various legal issues. For instance, the court refused to hear the case of Jameka Evans, a lesbian security guard who claimed she was harassed on the job due to her sexual orientation, her masculine presentation, and her defiance of “traditional” female gender norms.

The attorneys for Clayton County argue that the Evans case “presented the identical issue that [Bostock] seeks to present to the Court in this case,” and, as such, the court should refuse to hear the appeal.

John Riley is the local news reporter for Metro Weekly. He can be reached at jriley@metroweekly.com

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