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EMPLOYMENT LAW ALERT – ELEVENTH CIRCUIT RULES THAT TITLE VII DOES NOT PROHIBIT SEXUAL ORIENTATION DISCRIMINATION

Earlier this month, the Eleventh Circuit held that Title VII does not prohibit discrimination in the workplace on the basis of sexual orientation. Evans v. Georgia Regional Hospital.  Thus, the lower federal courts in Florida, Georgia and Alabama will have to follow suit.  In the Evans matter, the plaintiff, a female hospital guard, brought a lawsuit against her employer on the grounds that she was forced to resign because she is a lesbian and did not conform to traditional gender norms.  For example, she did not present herself in a “traditional womanly manner,” and wore “men’s-style clothing” and  “men’s-style haircut” to work. The Eleventh Circuit drew a distinction between claims based on sexual orientation (i.e. whether one is attracted to persons of the same sex, the opposite sex, or both) and clams based on gender non-conformity (i.e., whether one behaves in a manner traditionally associated with one’s gender).

The Eleventh Circuit, in a 2-1 decision, concluded that sexual orientation is not a protected class under Title VII. The Eleventh Circuit held that “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.”

The Eleventh Circuit has joined every other federal appeals court that has ruled on the issue, in holding that Title VII does not protect individuals against discrimination based on sexual orientation. It appears that federal legislation is needed to include “sexual orientation” as a protected class under the protections of Title VII.  Until that time, there are local ordinances that protect against discrimination based on “sexual orientation.”

Claire Saady is a partner in Saady & Saxe, P.A., and concentrates her practice in the area of employment law. She can be reached at claire@saadyandsaxe.com or 813-909-8855.

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