Dive Brief:

• The U.S. Court of Appeals for the 11th Circuit ruled that employers aren’t prohibited from discriminating on the basis of sexual orientation under Title VII of the 1964 Civil Rights Act. The ruling runs counter to the Equal Employment Opportunity Commission’s stand that discrimination based on sexual orientation or presentation is sexual discrimination, which Title VII prohibits.
• Jameka Evans, the plaintiff in the case, is a lesbian who presents herself as traditionally masculine. She sued her employer Georgia Regional Hospital under Title VII, alleging that she faced harassment and hostility because of her sexual orientation and presentation.
• Slate writes that two judges on the three-judge panel based their majority decision on Title VII’s narrowest definition. They dismissed Evans argument, referring to a 1979 court decision stating that Title VII doesn’t protect someone who’s fired for being homosexual. But court watchers say they overlooked a 1989 Supreme Court ruling (Price Waterhouse v. Hopkins) stating that sex discrimination includes sex stereotyping.

Dive Insight:

The 11th Circuit Court’s decision seems to suggest without debate or analysis that employers may discriminate against lesbians or gay men without violating Title VII. The dissenting judge, Robin S. Rosenbaum, wrote that the 1989 High Court ruling nullified the 1979 court decision on which the other two judges formed their conclusion.

The U.S. Court of Appeals for the 7th Circuit is rehearing arguments in a similar sex discrimination case — a rare court occurrence. An outcome that differs from the 11th circuit ruling could send conflicting messages to employers trying to comply with the law and members of the LGBTQ community, whose protection under Title VII might seem uncertain. If the 11th Circuit ruling moves on to appeal and the 7th Circuit rules differently, the issue could move on to the Supreme Court.

While sex discrimination court cases merit watching, employers don’t have to wait on judges’ decisions to determine how to handle discrimination claims. Employers should have anti-discrimination workplace policies, regularly communicate them to employees and strongly enforce them.