Monday, March 13, 2017

11th Circuit on Sexual Orientation Discrimination Under Title VII

On Friday, the Eleventh Circuit Court of Appeals issued its opinion in Evans v. Georgia Reg. Hosp. The plaintiff alleged that she was discriminated against on the basis of her sexual orientation in violation of Title VII. Of course, Title VII does not specifically list "sexual orientation" as a protected class, so:
Not official use.
Evans next argues that she has stated a claim under Title VII by alleging that she endured workplace discrimination because of her sexual orientation. She has not. Our binding precedent forecloses such an action. Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) (“Discharge for homosexuality is not prohibited by Title VII . . . .”). “Under our prior precedent rule, we are bound to follow a binding precedent in this Circuit unless and until it is overruled by this court en banc or by the Supreme Court.” Offshore of the Palm Beaches, Inc. v. Lynch, 741 F.3d 1251, 1256 (11th Cir. 2014) (internal quotations omitted).
* History lesson: Some District Courts from the Fifth Circuit split off to form the Eleventh Circuit in 1981, so the Eleventh Circuit treats prior Fifth Circuit decisions as binding precedent.

That's not necessarily game over though. As the Court recognized, employees may bring claims under Title VII for discrimination or harassment on the basis of gender nonconformity (or "sex stereotyping"). The Court did not provide much analysis on this issue, but held:
Evans’s pro se complaint nevertheless failed to plead facts sufficient to create a plausible inference that she suffered discrimination. See Surtain, 789 F.3d at 1246. In other words, Evans did not provide enough factual matter to plausibly suggest that her decision to present herself in a masculine manner led to the alleged adverse employment actions.
So, it affirmed the District Court's dismissal of her discrimination claim. However, it did reverse the lower court on one key issue - the lower court had dismissed her claim with prejudice. The Eleventh Circuit noted that the plaintiff has a right to amend her complaint once unless amendment would be futile. As she could plausibly plead additional facts to state a claim for gender nonconformity, the plaintiff was granted an opportunity to amend.

I suspect we'll see a petition to rehear this en banc (a request for the entire Eleventh Circuit to hear the case).