In Powerful Dissent, 11th Circuit Judge Explains Why Title VII Prohibits Discrimination Based on Sexual Orientation

By Adam Polaski • March 13, 2017 • 1:32 pm

On Friday, the U.S. Court of Appeals for the 11th Circuit ruled against Jameka Evans, Lambda Legal’s client in a case where Evans was fired by her employer for being a lesbian.

Lambda Legal’s Greg Nevins explained:

“This is not the end of the road for us and certainly not for Jameka. Keeping your job shouldn’t depend on whether or not you pass for straight. There is no way to draw a line between sexual orientation discrimination and discrimination based on gender nonconformity because not being straight is gender-nonconforming, period. Ninety percent of Americans believe that LGBT people should be treated equally in the workplace. The public is on the right side of history, and it’s time for the Eleventh Circuit to join us.”

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sex – and in recent years, many federal courts have interpreted that prohibition to include discrimination based on sexual orientation and gender identity.

In a powerful dissent, 11th Circuit Judge Robin S. Rosenbaum disagreed with her two other colleagues on the panel, laying out exactly why sexual orientation discrimination is prohibited by Title VII. Her argument is well worth the read, stretching back to the U.S. Supreme Court ruling in Price Waterhouse v. Hopkins, which found that discrimination based on gender stereotyping is prohibited by Title VII.

Just five years ago, the 11th Circuit Court of Appeals ruled that discrimination based on gender identity is prohibited by Title VII, in a landmark decision called Glenn v. Brumby

Read Judge Rosenbaum’s full dissent here, and check out some excerpts below:

The rule that Title VII precludes discrimination on the basis of every stereotype of what a woman supposedly should be—including each of those stated above—has existed since the Supreme Court issued Price Waterhouse v. Hopkins … Yet even today the panel ignores this clear mandate. To justify its position, the panel invokes 38-year-old precedent—issued ten years before Price Waterhouse necessarily abrogated it—and calls it binding precedent that ties our hands. I respectfully disagree.

Plain and simple, when a woman alleges, as Evans has, that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer’s image of what women should be—specifically, that women should be sexually attracted to men only.

And it is utter fiction to suggest that she was not discriminated against for failing to comport with her employer’s stereotyped view of women. That is discrimination “because of . . . sex,” 42 U.S.C. § 2000e-2(a)(1), and it clearly violates Title VII under Price Waterhouse.

By their reasoning, discrimination against a lesbian happens not because she is a woman, but because she is a lesbian, as though being sexually attracted to men only is somehow divorced from a prescriptive stereotype of women.

It is time that we as a court recognized that Title VII prohibits discrimination based on an employee’s sexual orientation since that is discrimination “because of . . . sex.”

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