Jameka Evans’ claim of sexual orientation bias was rejected, but Lambda Legal will seek re-argument before the full 11th Circuit. | LAMBDA LEGAL
BY ARTHUR S. LEONARD | The Atlanta-based US 11th Circuit Court of Appeals issued a divided ruling on March 10 holding that a lesbian plaintiff suing for discrimination under Title VII of the Civil Rights Act of 1964 could file an amended complaint alleging she suffered discrimination because of sex stereotyping, but upholding a district court’s dismissal of her claim that sexual orientation discrimination per se violates the statute.
A dissenting judge on the three-member panel, agreeing with the Equal Employment Opportunity Commission (EEOC), which submitted an amicus brief in the case, and Lambda Legal, which was appointed to represent the plaintiff on appeal, argued that Jameka Evans should be allowed to pursue her sexual orientation discrimination claim, as well.
Lambda Legal immediately announced that it would petition for rehearing “en banc” before the entire 11th Circuit bench.
11th Circuit allows her to argue gender stereotyping instead
Unsurprisingly, the judges rejecting the sexual orientation claim, Circuit Judge William Pryor and Florida District Judge José Martinez, were appointed by President George W. Bush. The dissenter, Circuit Judge Robin Rosenbaum, was appointed by President Barack Obama.
This case is one of the appeals recently argued in three different federal circuits presenting the question whether sexual orientation discrimination claims are covered as “discrimination because of sex” under Title VII.
The Chicago-based Seventh Circuit heard argument en banc in November, and a three-judge panel of the New York-based Second Circuit heard argument in two different appeals in January.
So far, no federal circuit court has ruled favorably on such a claim, although many have ruled that gay plaintiffs may be able to sue under Title VII on gender-based sex stereotyping claims.
There are older court of appeals precedents in most circuits rejecting sexual orientation discrimination claims, as such, under Title VII. The Supreme Court has never directly ruled on the question.
In this case, Jameka Evans claimed she was discriminated against in her position as a security officer at Georgia Regional Hospital because of both gender non-conformity and sexual orientation. Evans, a butch lesbian, claims she faced discrimination because she failed to carry herself in a “traditional womanly manner” and that “it was ‘evident’ that she identified with the male gender, because of how she presented herself — ‘(male uniform, low male haircut, shoes, etc.),’” wrote Judge Martinez.
She filed her case in federal district court in Savannah without a lawyer. The district judge, J. Randal Hall, referred her case to Magistrate Judge George R. Smith, who relied on an old circuit precedent to find that Evans’ sexual orientation discrimination claim could not be brought under Title VII. Lambda submitted an amicus brief, urging Judge Hall to reject the magistrate’s recommendation that the case be dismissed, but Hall did so without making reference to Lambda’s arguments.
Hall then appointed Lambda to represent Evans on appeal to the 11th Circuit, and Gregory Nevins from Lambda’s Atlanta office argued the appeal. The hospital never responded to the complaint and was not represented at a one-sided argument before the court of appeals.
At the heart of this appeal and the other pending cases is the effect of two Supreme Court rulings, Price Waterhouse v. Hopkins and Oncale v. Sundowner Offshore Services. In Price Waterhouse, the high court ruled that an employer’s denial of a partnership to a woman because of her failure to conform to the employer’s stereotyped view of how women should behave and present themselves was evidence of discrimination “because of sex” in violation of Title VII. In Oncale, the Supreme Court overturned the lower court’s dismissal of a same-sex harassment case in a unanimous opinion authored by Justice Antonin Scalia holding that the interpretation of discrimination “because of sex” was not limited by congressional intent at the time the Civil Rights Act was passed in 1964. Scalia commented that “comparable evils” to those that Congress originally sought to address might be covered by the statute, and so a claim by a man that he was subjected to sexual harassment by male co-workers could be dealt with under Title VII, even if members of Congress did not anticipate or intend that such cases would be covered.
LGBTQ rights advocates have used these two Supreme Court cases to argue that gay and transgender plaintiffs who suffer discrimination because of their sexual orientation or gender identity should be able to bring sex discrimination claims under Title VII. Sex stereotyping is arguably present to some extent in all such cases, they argue, and, at a more fundamental level, anti-gay and anti-trans discrimination is “necessarily” based on their sex.
This perspective persuaded the EEOC during the Obama years, resulting in administrative rulings in cases raised by LGBTQ federal employees, and has also convinced some federal district judges. Several federal courts of appeals have accepted the sex stereotyping argument, but only to a limited extent, according to Judge Pryor’s extensive concurring opinion in Evans’ case.
So far, no federal circuit court has accepted the argument that an otherwise gender-conforming gay person can bring a sex discrimination claim under Title VII.
Judge Martinez premised his vote to reject the sexual orientation discrimination claim on a 1979 decision by the New Orleans-based Fifth Circuit Court of Appeals in Blum v. Gulf Oil Corporation, where that court found that “discharge for homosexuality is not prohibited by Title VII.” Since the 11th Circuit was carved out of the Fifth Circuit in 1981, it relies on old Fifth Circuit precedents.
Lambda argued that the 1979 ruling is no longer valid in light of the 1989 Price Waterhouse decision and the 1999 Oncale decision. Martinez and Pryor both rejected that argument, but dissenting Judge Rosenbaum embraced it. At the oral argument, Pryor observed that in light of the Blum precedent, the three-judge panel most likely could not rule in favor of Evans since only an en banc panel of all the circuit’s judges could reverse an existing precedent.
On the issue of sex stereotyping, Martinez asserted that Evans’ complaint “failed to plead facts sufficient to create a plausible inference that she suffered discrimination. 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.”
Still, Martinez said she should be allowed to file an amended complaint, an allowance customarily afforded when plaintiffs are representing themselves.
Pryor’s concurring opinion agreed that the magistrate erred in asserting that a sex stereotyping argument by a lesbian plaintiff was just “another way to claim discrimination based on sexual orientation,” and thus Evans should get a second chance to frame a complaint that might survive review.
Pryor, however, wrote at length to refute the arguments by the EEOC and Judge Rosenbaum that sexual orientation discrimination claims were “necessarily” sex discrimination claims. He insisted on a strict distinction between “status” and “conduct,” arguing that sex stereotyping claims were tied to the plaintiff’s conduct in failing to conform to gender stereotypes. In his view, a claim of sexual orientation discrimination not accompanied by factual allegations about the plaintiff’s gender non-conformity fell short. He was not willing to accept the argument that being sexually attracted to members of the same sex would suffice to constitute non-conformity with sexual stereotypes.
Rosenbaum took a diametrically opposite approach, accepting the argument that in cases where plaintiffs show they suffered sexual orientation discrimination, the employer was discriminating because the employee violated the stereotypical view that women are supposed to be attracted to men, not to women, and vice versa.
Rosenbaum argued that Pryor’s opinion was “at war” with his vote a decade ago that allowed a sex discrimination claim under the Equal Protection Clause by a transgender employee of the Georgia Legislature. Indeed, Pryor’s vote in that case had given the plaintiff hope the panel might rule in her favor. Pryor devoted considerable effort in his concurring opinion to explaining why he found this case to be different, once again relying a distinction between “status” and “conduct.” Cross-dressing and announcing plans to transition were “conduct,” in his view, while having a sexual orientation was “status.” He argued that sex stereotyping theory was concerned with conduct, not status, in its focus on gender non-conformity.
The sharp division among the judges may lead the 11th Circuit to agree to hear the case en banc, especially since one of the members of the panel, Martinez, is a district judge. The federal judiciary is so short-handed as a result of the Republican-controlled Senate’s stonewalling of former President Barack Obama’s second term court of appeals nominees that it has become increasingly common for circuits to fill out three-judge panels by “designating” district court judges to serve. A district judge would not participate if the case were re-argued en banc.
Also, with the Seventh Circuit having held en banc argument on this question recently, it seems clear many federal judges believe it is time to reconsider the issue. The decisions from the Seventh and Second Circuits are eagerly awaited, especially if the result is a circuit split that would entice the Supreme Court to take up the issue.