Dive Brief:

• Lambda Legal will ask the U.S. Supreme Court to hear a lesbian security guard's case after the full 11th U.S. Circuit Court of Appeals denied the organization's en banc petition to rehear the case. Jameka Evans, a security guard, was allegedly harassed and fired for being a lesbian and for not conforming to the gender norms of a woman in appearance or behavior, according to Lambda Legal.
• In 2015, Evans sued her former employer, Georgia Regional Hospital, alleging that its actions violated Title VII of the Civil Rights Act. She argued that because the law prohibits sex discrimination, it protects people from discrimination based on sexual orientation and whether they conform to a gender stereotype. But a district court disagreed and dismissed her complaint.
• Meanwhile, in April, the 7th Circuit Court of Appeals ruled in favor of another Lambda client, Kimberly Hively, whose employer, Ivy Tech Community College, allegedly fired her for being a lesbian.

Dive Insight:

There's no guarantee that the High Court will take up Evans' case, but with a circuit split now firmly in place, the issue could be ripe for review.

Both the 7th and 11th Circuits have support elsewhere. The U.S. Equal Employment Opportunity Commission, which enforces Title VII, agrees with the 7th Circuit that discrimination based on sexual orientation is illegal. The 2nd Circuit, on the other hand, has held that such discrimination is not forbidden. That court may soon revisit the question, however.

But even if the High Court agrees to take up the case, its conservative majority could be a big hurdle for Lambda Legal's argument.

Barry Hartstein, co-chair of the EEO & Diversity Practice Group in Littler Mendelson's Chicago office, told HR Dive in February that while the uncertainly persists, employers should stay on the safe side by including sexual orientation in their anti-discrimination policies.