The 11th Circuit’s odd LGBT-discrimination decision

Late last week, the 11th Circuit Court of Appeals, in Evans v. Georgia Regional Hosp. [pdf], held that Title VII does not protect sexual-orientation discrimination per se, and that to sufficiently plead such a cause of action under Title VII, one must allege facts sufficient to establish that the employer discriminated based on non-conformity with sex-based stereotypes. 

As such, this decision directly conflicts with the formal position of the EEOC (a priority that EEOC Commissioner Chai Feldblum announced will not change under President Trump), and expected decision by the 2nd and 7th Circuits.

The most curious aspect of the decision, however, comes from the concurring opinion of Judge William Pryor (whom President Trump had considered to file Justice Scalia’s Surpeme Court seat).

The unsurprising reality that some individuals who have experienced discrimination because of sexual orientation will also have experienced discrimination because of gender nonconformity by no means establishes that every gay individual who experiences discrimination because of sexual orientation has a “triable case of gender stereotyping discrimination.” … 

By assuming that all gay individuals behave the same way or have the same interests, the Commission and the dissent disregard the diversity of experiences of gay individuals. Some gay individuals adopt what various commentators have referred to as the gay “social identity” but experience a variety of sexual desires. … Like some heterosexuals, some gay individuals may choose not to marry or date at all or may choose a celibate lifestyle. And other gay individuals choose to enter mixed-orientation marriages. 

Perhaps the best counter-argument to this position comes from this question, asked by 7th Circuit Judge David Hamilton during oral argument over the same issue in a case pending in that court: “How do courts draw the line you want us to draw without sounding arbitrary and, occasionally, silly?”

Silly. 

All gay and lesbian individuals behave the same way in one key aspect—they all are sexually attracted to people of the same sex. That’s the very definition of gay. Gay men are sexually attracted to other men, and gay women to other women. And when an employer discriminates against a gay or lesbian employee, that employer is inherently discriminating based on the employee’s choice of sexual partner, which equals discrimination based on gender. To view it any other way is intellectually dishonest.

Yes, Congress could simplify this issue by passing the Employment Nondiscrimination Act, or the Supreme Court could do so by overruling Evans. Until then, however, understand that the EEOC, most courts, and many states (but not Ohio) and localities disagree with Evans. More importantly, no matter the state of the law, your business is always free to do right by all of your employees by implementing policies banning LGBT discrimination in your workplace.