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High court won't review gay employment case

by Lisa Keen

It was a big disappointment for LGBT legal activists when the U.S. Supreme Court on December 11 announced it would not review a case seeking a ruling that existing federal law prohibits sexual orientation discrimination in the workplace.

But it was not game over.

Evans v. Georgia Regional is only one of several lawsuits around the country brought by LGBT employees who have been fired because of their sexual orientation. It was the first to reach the U.S. Supreme Court and, now, it is the first to be rejected for review by the justices.

But it could come back to the Supreme Court again, said Greg Nevins, the Lambda Legal Defense and Education Fund attorney representing plaintiff Jameka Evans.

That's because Evans claims her employer fired her both because of her sexual orientation (lesbian) and because of gender stereotyping (that she dressed and appeared in a way that made her appear masculine).

The appeal rejected by the Supreme Court this month involved a lower court decision that said Title VII of the Civil Rights Act - the section that prohibits job discrimination based on sex - cannot be used to prohibit discrimination based on sexual orientation. If the Supreme Court had agreed to hear that appeal, there would have been a lot on the line for LGBT people. A favorable decision would have meant that an existing federal law (Title VII) prohibits job discrimination based on sexual orientation. An unfavorable decision would have been a green light for employers to discriminate based on sexual orientation.

The Supreme Court did neither. It simply refused to hear that appeal. So, now Lambda Legal will go back to district court in Atlanta to press its client's claim that her employer discriminated based on gender stereotyping. And that could be an easier case. In 1989, the Supreme Court ruled (in Pricewaterhouse v. Hopkins) that discrimination based on "sex" includes discrimination based on gender stereotyping.

"Jameka still has her gender stereotyping Title VII claim to litigate in the District Court; all remedies are preserved," said Nevins.

The Evans case and the many others that are likely to follow are very significant to LGBT employees.

"By declining to hear this case, the Supreme Court is delaying the inevitable and leaving a split in the circuits that will cause confusion across the country," said Nevins.

In Lambda Legal's September 7 appeal to the Supreme Court, it noted that "almost all" of the other federal circuits and two federal agencies differ on the question of whether discrimination based on "sexual orientation" should be included under the purview of discrimination based on "sex." Such conflicts among the circuit courts of appeal are what often prompt the Supreme Court to accept a case.

The 7th U.S. Circuit Court of Appeals ruled that workplace discrimination violates federal civil rights laws (Hively v. Ivy Tech), but the employer did not appeal to the Supreme Court. So, while LGBT people in 7th Circuit states (Illinois, Indiana, and Wisconsin) can press a Title VII claim, those in other states cannot. And the full 2nd Circuit bench is still deliberating on another Title VII sexual orientation case (Zarda v. Altitude Express). A decision there could be months away and, there's no guarantee that decision will be appealed to the Supreme Court.

If and when another Title VII sexual orientation case does arrive before the Supreme Court, the court may or may not take it. The Supreme Court can accept or reject just about any case it chooses. In order to hear any case, at least four of the nine justices must vote to hear it. In the Evans case, one might have expected that the court's more liberal justices - Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and Stephen Breyer - would have given the nod. But that, apparently, did not happen.

In other disappointing Supreme Court news this month, the court declined December 4 to hear an appeal of a Texas Supreme Court decision that held that a trial court should consider whether Obergefell v. Hodges requires that the city pay equal benefits. The state Supreme Court decision claims the U.S. Supreme Court addressed only the right to a marriage license in its 2015 Obergefell decision. The Texas court said the Supreme Court decision failed to address such specifics as equal benefits. The city of Houston had appealed the Texas decision to the Supreme Court, seeking a declaration that Obergefell requires the city to pay equal benefits to all city employees, including those married to same-sex spouses. Following Obergefell, two taxpayers, including Jack Pidgeon, filed the original lawsuit to oppose a decision by then-Mayor Annise Parker to provide equal benefits to all city employees.

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