Thursday, March 16, 2017

11th Circuit Holds Sexual Orientation Discrimination is Not Actionable Under Title VII

As of today's date, there is currently no specific legislation that protects against discrimination in the workplace against individuals on the basis of their sexual orientation.  Legislation like the Employment Nondiscrimination Act ("ENDA") has gone nowhere for over two decades, which has left it to the states to enact protection, which Wisconsin has done under the Wisconsin Fair Employment Act ("WFEA") in protecting sexual orientation against discrimination in the workplace (though it does not protect against gender identity).  With a recent decision out of the 11th Circuit, they become the 9th circuit to hold Title VII does not prohibit discrimination on the basis sexual orientation which means the Supreme Court of the United States will have to hold otherwise, which it is highly unlikely to do with the current makeup of the Court.

FACTS

The plaintiff, Jameka K. Evans, worked for the defendant Georgia Regional Hospital, as a security officer from August 1, 2012 until October 11, 2013, when she left voluntarily.  According to the pro se complaint she filed, she alleges that during her time as a security officer with the hospital she was denied equal pay for work, harassed, and physically assaulted or battered, discriminated against on the basis of her sex and targeted for termination for failing to carry herself in a "traditional woman[ly] manner."  She claims that, although she is a gay woman, she did not broadcast her sexuality but that it was "evident" that she identified with the male general, because of how she presented herself--"(male uniform, low male haircut, shoes, etc.").

A magistrate judge issued a report and recommendation ("R&R") wherein Evans was granted leave to proceed in forma paupers, denied her request for appointment of counsel, and sua spent screened her complaint.  Among other things, the magistrate judge reasoned that--based on case law from all circuits that had addressed the issue--Title VII "was not intended to cover discrimination against homosexuals."  With regard to Evan's claim of discrimination based on gender non-conformity, the magistrate judge concluded that it was "just another way to claim discrimination based on sexual orientation," no matter how it was otherwise characterized.  Additionally, the magistrate judge recommended dismissal of the retaliation claim on the basis that Evans failed to allege that she opposed an unlawful employment practice, given that sexual orientation was not protected under Title VII.  The magistrate judge recommended dismissing all of Evan's claims, with prejudice, without allowing her to leave to amend, because she pled no actionable claim nor seemed likely to be able to do so.

Both the Lambda Legal Defense and Education Fund, Inc. and Equal Employment Opportunity Commission ("EEOC") filed amicus curiae briefs in support of Evan's objections to the R&R.  On appeal to the 11th Circuit, Evans argues that the district court erred in dismissing her claim that she was discriminated against for failing to conform to gender stereotypes, because a LGBT person may properly bring a separate discrimination claim for gender non-conformity in the 11th Circuit.  Evans also argued that, contrary to the district court's assertion, sexual orientation discrimination is, in fact, sex discrimination under Title VII.  Evans further argued that the district court erred in concluding that she did not meet the requirements to bring a retaliation claims, because a plaintiff can establish a prima facie case of unlawful retaliation if there is a good faith, reasonable belief that the employer was acting unlawfully.  Evans also argued that she should have been allowed to amend her complaint.

Plaintiff's Non-Conformity Claim

Evans argued that the district court erred in dismissing her claim that she was discriminated against for failing to conform to gender stereotypes, as the district claimed that this was just another way to claim discrimination based on sexual orientation.  The 11th Circuit held that the district court erred in making this conclusion.

The 11th Circuit held that, even though discrimination based on gender non-conformity is actionable, Evans' pro se complaint nevertheless failed to plead facts sufficient to create a plausible inference that she suffered discrimination.  Thus, the 11th Circuit held that Evans was entitled an opportunity to amend her complaint one time unless doing so would be futile.

Discriminated based on failure to conform to a gender stereotype is sex-based discrimination.  In Glen v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011), the 11th Circuit held that discrimination against a transgender individual because of gender-nonconformity was sex discrimination.  In that decision, the 11th Circuit stated that, "[a]ll persons, whether transgender or not, are protected from discrimination on the basis of gender stereotype," and they reasoned that, because those protections apply to everyone, a transgender individual could not be excluded.  Accordingly, the district court's order dismissing Evans' gender non-conformity claim was vacated and remanded with instructions to grant Evans leave to amend her claim.

Sexual Orientation Discrimination Under Title VII

The 11th Circuit shut this argument down immediately:
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) (In Bonner v. City of Prichard, 61 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court adopted was binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981) ("Discharge for homosexuality is not prohibited by Title VII....").  
The EEOC argued that the statement in Blum regarding discharge for homosexuality is dicta and not binding precedent, but the 11th Circuit disagreed.  The EEOC also argued that the Supreme Court decisions in Price Waterhouse v. Hopkins and Oncale v. Sundower Offshore Servs., Inc. support a cause of action for sexual orientation discrimination under Title VII and, again, the 11th Circuit disagreed stating that the fact that claims for gender non-conformity and same-sex discrimination can be brought pursuant to Title VII does not permit them to depart from Blum as they held the Supreme Court decision must be "clearly on point."  The 11th Circuit then noted all of the other circuits that have held sexual orientation discrimination is not actionable under Title VII:  1st, 2nd, 3rd, 4th, 6th, 7th, 8th, and 9th (now the 11th).  

Plaintiff's Retaliation Claim

The 11th Circuit dismissed this portion of the appeal on technical grounds without addressing the merits of whether she could establish a prima facie case of unlawful retaliation if there was a good faith, reasonable belief that the employer was acting unlawfully because they held they will not generally review a magistrate judge's findings or recommendations if a party failed to object to those recommendations, which Evans failed to do.  Consequently, the 11th Circuit stated, they will only review a waived objection, for plain error, if necessary in the interests of justice and review for plain error "rarely applies in civil cases."  The Court held nothing in the record suggested that plain error review was appropriate in this appeal.

The case is Evans v Georgia Regional Hospital, No. 15-15234 (March 10, 2017).

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