Clayton County asked the U.S. Supreme Court to ignore a split in lower court rulings and deny the petition of a former county employee who claimed he was fired for being gay.
Gerald Bostock sued the county in 2016 and claimed he was fired from his job as child welfare services coordinator soon after county officials found out about his involvement with Hotlanta Softball League, an LGBTQ sports organization. Bostock argued that Title VII protections against sex discrimination in federal law also mean sexual orientation is protected.
In a petition filed Friday, attorneys for the county argued that Bostock is advancing "novel legal theories" and that the Supreme Court should ignore a split among U.S. Circuit Courts of Appeals. The Second and Seventh circuit appeals courts have ruled that sexual orientation is sex-based discrimination, while appeals courts in nine other circuits have ruled that it is not. Attorneys for Clayton County called that “a strong and unanimous consensus.”
"The existence of a split among the circuits — especially a recent split involving only two circuits — is not itself a reason to grant petitions for certiorari," the county's Supreme Court petition said.
“The novel legal theories advanced by [Bostock] … are solely intended to entice the Court to seize legislative power from Congress and do what Congress has declined to do for more than 50 years: amend Title VII by adding sexual orientation as a protected class,” they added.
The U.S. District Court for the Northern District of Georgia dismissed Bostock’s case in 2017. He appealed to the 11th Circuit Court. In May 2018, a three-judge panel ruled that Title VII does not cover sexual orientation. Bostock appealed that decision and asked for the case to be heard before the full 11-judge panel. That appeal was denied in July.
When Bostock’s attorneys appealed the 11th Circuit’s decision in May, they simultaneously filed a petition for the U.S. Supreme Court to hear their case.
The county said "the court should await further development as to whether other circuit courts adopt or reject" the Second and Seventh circuits’ rulings. They also pointed out that the Supreme Court denied the petition of Jameka Evans, who also argued Title VII’s protections against sex discrimination cover sexual orientation.
Evans claimed Georgia Regional Hospital fired her from her job as a security guard because she is a lesbian. Georgia Attorney General Chris Carr filed a motion to dismiss the case in January.
Clayton County officials argued Bostock was fired for misspending county money. Bostock was accused of using a county debit card to pay for meals at Midtown eateries including Cowtippers and Frogs.