HCBA Lawyer Magazine Vol. 28, No. 1 | Page 49

ELEVENTH CIRCUIT BARS TITLE VII SEXUAL ORIENTATION CLAIMS Labor & Employment Law Section Continued from page 46 Circuit in Hively concluded that Title VII’s prohibition against sex discrimination includes sexual orientation discrimination. The Seventh Circuit grounded its decision on the landmark Supreme Court case Price Waterhouse v. Hopkins, stating that “common- sense reality [makes it] actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex.” 853 F.3d at 350 - 51. Despite the Seventh Circuit’s groundbreaking decision in Hively, the Eleventh Circuit, in Evans, adhered to binding precedent and held that claims based on sexual orientation are not actionable under Title VII. In that case, an 1<2;?3?.>;??8697??,??4>5=?0=+/<- employee filed a Title VII claim against her employer based on sexual orientation and gender nonconformity. The district court dismissed the sexual orientation claim, and the Eleventh Circuit affirmed. In support of its ruling, the Eleventh Circuit followed precedent holding that “discharge for homosexuality is not prohibited by Title VII.” Evans, 850 F.3d at 1255 (quoting Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979)). Notably, the court recognized that gender nonconformity remained a viable claim under Price Waterhouse because such claims are based on sex. After Evans was decided, the plaintiff moved the court to rehear the case en banc, citing the Hively decision. In July 2017, the Eleventh Circuit put the issue to rest when it denied the plaintiff ’s petition to rehear the case en banc. As a result, the Eleventh Circuit has, for now, foreclosed claims of Title VII sexual orientation brought in Florida. The circuit split has set the stage for the Supreme Court to resolve the issue once and for all. But, until then, Evans makes clear that Florida employees cannot bring Title VII claims based strictly on sexual orientation. Author: Matthew S. Perez - Phelps Dunbar LLP 7