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11th Circuit Panel: Sexual Orientation Discrimination Isn’t Impermissible Sex Discrimination Under Title VII

atl_tuttle_bldgIn the latest ruling of what has become a nationally watched case, an 11th Circuit Court of Appeals panel has upheld a trial court’s decision to throw out a Georgia security guard’s Title VII claim based upon her sexual orientation. The ruling is worth noting by Georgia employers and employees for a number of reasons. First, the decision announced the panel’s refusal to expand the parameters of Title VII to include an explicit prohibition against employment discrimination against gays and lesbians. Second, the panel re-affirmed the avenue available to some employees in this security guard’s position: pursuing a claim of discrimination based upon failure to conform to gender stereotypes.

The employee was a woman who worked as security guard at a Georgia hospital. The employee was a lesbian who wore a hairstyle and clothing that were more stereotypically masculine than feminine. During her time in that job, the woman allegedly endured harassment, physical battery, and denial of equal pay.

In her lawsuit, the security guard asserted that her employer committed impermissible discrimination on two grounds. One was on the basis of her sexual orientation and the other was her failure to conform to traditional (feminine) gender stereotypes.

The majority of the three-judge panel declined to announce a clear and straightforward prohibition of sexual orientation discrimination under Title VII. The panel made its decision based upon a previous decision by the circuit, 1979’s Blum v. Gulf Oil Corp., that clearly stated that discrimination on the basis of homosexuality is not prohibited by Title VII. The panel’s majority stated that it was obliged to follow the precedent established by the Blum ruling.

Precedent in the 11th Circuit, however, also holds that discriminating against a worker based upon her failure to conform to traditional gender stereotypes is, unlike sexual orientation discrimination, discrimination “based on sex” and a violation of Title VII. This caselaw saved the security guard’s case from total defeat, as the appeals court allowed her to continue her pursuit of a claim based upon the discrimination she alleged she suffered based on her stereotypically masculine hair and clothes.

The dissenting judge in this case strongly disagreed with the majority. In her opinion, she argued that homosexuality was in and of itself, a type of failure to conform to gender stereotypes (which the 11th Circuit already includes under Title VII.). Any time an employer acts against a lesbian, the employer has acted “against the woman for failing to conform to the employer’s stereotype that women should be sexually attracted to only men,” the dissent argued.

The current state of 11th Circuit caselaw potentially provides slightly greater potential for success for transgender workers and some gay and lesbian employees than it does other gay and lesbian employees. Women workers who (like this security guard) present as more stereotypically masculine or men who are more stereotypically feminine may have a claim based upon a gender stereotyping claim. The groups that get left out, as demonstrated by a recent case involving the Memphis Police Department, are gay and lesbian workers who do conform to gender stereotypes (masculine gay employees and feminine lesbian workers). Workers in some locations, such as Atlanta, are afforded greater protection, as the city’s ordinances have provisions that establish certain protections for LGBT employees.

The security guard’s case may be far from over. She can now ask for the entire the 11th Circuit to hear and rule upon her case. Attorneys arguing on her behalf indicated that they plan to make such a request.

While this ruling was a win for the employer, the outcome may not be truly final yet. To make sure that you (or your employer) is in compliance with Title VII, it is important to have counsel who is knowledgeable in this area and up-to-date on the fast-occurring changes in this area of the law. The diligent Georgia discrimination attorneys at Mays & Kerr are well-versed on the established precedent and the latest developments in this and related cases. Our attorneys can help you better understand your rights and obligations under Title VII.

To speak with one of our lawyers about your case, call 1-877-986-5529.

More blog posts:

Memphis P.D. Wins Dismissal in Discrimination Case Brought by Gay Police Officer, Atlanta Employment Attorneys Blog, Feb. 23, 2017

Seventh Circuit Rejects Employee’s Title VII Case Based on Sexual Orientation; 11th Circuit Considers Similar Issues with Georgia, Florida Employees, Atlanta Employment Attorneys Blog, Aug. 5, 2016