Seventh Circuit Rejects Employee’s Title VII Case Based on Sexual Orientation; 11th Circuit Considers Similar Issues with Georgia, Florida Employees

A federal appeals court in Chicago issued an opinion stating that a lesbian professor from Indiana did not have a potential Title VII discrimination case when the sole basis for the alleged discrimination was her sexual orientation. While that decision has no direct impact on Georgia or Tennessee employers and employees, the 11th Circuit Court of Appeals in Atlanta has two similar matters before it, with the outcomes of those cases potentially having a massive impact in Georgia.

The Indiana employee, Kimberly Hively, began as a part-time adjunct professor with Ivy Tech Community College in South Bend in 2000. By 2014, Hively was still only a part-time professor. The professor sued the college, alleging that the employer had, on many occasions, improperly passed her over for full-time employment. In fact, she claimed that she never even secured an interview for the six full-time slots for which she applied between 2009 and 2014. According to the professor’s lawsuit, the college discriminated because she was a lesbian.

The college asked for an award of summary judgment in its favor, and the trial court granted that request. The trial court concluded that the professor’s stated basis for the alleged discrimination – her sexual orientation – was not a valid ground for a Title VII action. In July, the Seventh Circuit Court of Appeals in Chicago upheld the trial court’s decision in favor of the employer. Discrimination based on sexual preference, unlike discrimination based on sex, is not a prohibited employment practice.

As of this writing, no federal appeals court has declared sexual orientation discrimination to be a violation of Title VII. However, the U.S. Equal Employment Opportunity Commission last summer issued a ruling in a case named Baldwin v. Foxx, stating that “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” EEOC decisions are binding on the federal government, but private employers are not obligated to follow them.

Nevertheless, the EEOC’s Baldwin decision is an important one and could pave the way for an appeals court to include sexual orientation in the protections of Title VII. One court that will have the opportunity to do so is the 11th Circuit. Two cases, one from Georgia and one from Florida, present this exact issue to the court. In Burrows v. The College of Central Florida, Barbara Burrows was a college professor and the “vice president for instructional affairs.” After a few years on the job, the college demoted Burrows to a regular professor position and eventually terminated her after eliminating her position.

In the other case, a former security guard at Georgia Regional Hospital, Jameka Evans, was allegedly fired for her appearance (which did not conform to feminine stereotypes) and because she was a lesbian. In both cases, the EEOC has argued that Title VII prohibits sexual orientation discrimination and that the court should allow the women to pursue their cases. As mentioned previously in this blog, the court could rule for Evans without adopting the employee’s and the EEOC’s position regarding Title VII and sexual orientation, since she also argued that her employer discriminated based on her non-gender-stereotypical appearance, which many courts (including the 11th Circuit) have deemed to be a type of sex discrimination. The Burrows case, by contrast, raised no similar issues regarding discrimination based on a failure to conform to gender stereotypes.

A ruling stating that Title VII includes protection against sexual orientation discrimination would obviously have a clear and immediate impact on Georgia employers and employees. Such a decision could also trigger involvement by the U.S. Supreme Court. A ruling in favor of gay and lesbian employees in that court would affect employers and employees nationwide.

The law regarding LGBT individuals is shifting rapidly, including in the area of employment law. For determined advocacy and up-to-date knowledge of this and any other evolving aspect of employment law, rely upon the diligent Georgia sexual orientation discrimination attorneys at Parks, Chesin & Walbert. Our attorneys have extensive experience representing employers and employees in a wide spectrum of circumstances and are ready to help you.

To speak with one of our lawyers about your case, call 404-873-8048.

More blog posts:

Sixth Circuit: Employees Can Recover Back Pay in Title VII Cases for Lost Opportunities with Third-Party Employers, Atlanta Employment Attorneys Blog, July 20, 2016

Georgia Transgender and Homosexual Workers and 2016 Employment Discrimination Cases in the 11th Circuit Court of Appeals, Atlanta Employment Attorneys Blog, Jan. 27, 2016

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