On March 10, 2017, the 11th Circuit Court of Appeals (with jurisdiction in Florida, Georgia and Alabama) in a majority split decision, affirmed a district court’s dismissal of a former employee’s suit against her employer. The plaintiff alleged discrimination in violation of Title VII on the basis of her sexual orientation as a lesbian and for failing to carry herself in a “traditionally” womanly manner.
In Evans v. Ga. Reg’l Hosp., the appellate court relied on binding precedent in Blum v. Gulf Oil Corp., a 1979 case that expressly holds that “[d]ischarge for homosexuality is not prohibited by the Title VII.” The Evans Court explicitly stated that despite the fact that claims for gender non-conformity and same-sex discrimination may be brought under Title VII, it does not allow the Court to abandon the longstanding holding in Blum.
In its opinion, the Court criticized plaintiff for citing to the Supreme Court decisions in Price Waterhouse and Oncale for the proposition that sexual orientation is a protected status under Title VII, stating that plaintiff’s citations to those cases were misguided and do not squarely address whether sexual orientation discrimination is prohibited by Title VII. The Court further explained that because those decisions are neither contrary to nor directly on point with Blum, they do not overrule the binding precedent of this Circuit, which does not recognize discrimination based on sexual orientation as a cognizable claim under Title VII. In a concurring opinion, Judge Pryor explained, “[j]ust as a woman cannot recover under Title VII when she is fired because of her heterosexuality, neither can a gay woman sue for discrimination based on her sexual orientation.”
In the dissenting opinion, Judge Rosenbaum harshly criticized the majority’s opinion and their reliance on 38-year-old precedent that was issued ten years prior to Price Waterhouse. Judge Rosenbaum rebuked the continued use of Blum, arguing that the application of Blum essentially punishes individuals’ gender nonconformity – attraction to someone of the same sex. Judge Rosenbaum further argued that Price Waterhouse “substantially broadened the scope of actionable discriminatory stereotyping under Title VII.” As such, Judge Rosenbaum opined that discrimination based on an individual’s sexual orientation is discrimination based on a person’s failure to conform to a perceived gender role, which is discrimination because of sex. According to Judge Rosenbaum, “Price Waterhouse requires us to apply the rule that an individual cannot be punished because of his or her perceived gender non-conformity-in this case, sexual attraction to other women.”
While the Evans Court’s dismissed plaintiff’s sexual orientation claim, it also vacated the district court’s order dismissing plaintiff’s claim for discrimination based on failure to conform to gender stereotypes. The Court held that “the lower court erred because a gender non-conformity claim is not just another way to claim discrimination based on sexual orientation, but instead, constitutes a separate, distinct avenue for relief under Title VII.” The 11th Circuit made it clear that in order for a claim for discrimination based on gender non-conformity to be actionable, the plaintiff must provide enough factual information to plausibly suggest that the adverse employment action was a result of her failure to conform with behavior and/or appearance to gender stereotypes. Such nonconformity includes, but is not limited to a woman wearing a masculine haircut or a male wearing lipstick. Simply alleging discrimination based on one’s status as a gay man or woman is insufficient to establish a discrimination claim under Title VII in the 11th Circuit.
Although the 11th Circuit stands firm on its position that sexual orientation is not a protected status under Title VII, employers should consider refraining from making adverse employment decisions against any employee based on sexual orientation. Furthermore, employers should ensure that any adverse action does not discriminate against the employee for deviating from a gender stereotype.