A three-judge panel of a federal appeals court rejected the case of a security guard at a Georgia hospital who sued when she was fired for being gay.
The 11th Circuit U.S. Court of Appeals issued its ruling on Friday, agreeing with a lower court that claims of discrimination based on sexual orientation do not violate existing federal laws against gender bias. That means the case of Jameka Evans, fired from her job as a security guard at Georgia Regional Hospital in Savannah in 2013, still haven’t been fully heard in court.
Evans sued in 2015, arguing that the hospital violated Title VII of the Civil Rights Act of 1964 by discriminating against her on the basis of her sexual orientation and her nonconformity with gender norms and appearances. But in September 2015, a federal judge ruled that sexual orientation was not a protected class under Title VII and dismissed the lawsuit without holding a hearing.
In December, Lambda Legal – the attorneys for Evans (photo) – argued that the case should proceed during a hearing before a three-judge panel of the appeals court. On Friday, the court ruled 2 to 1 against Evans.
The swing vote was likely Judge William Pryor, a former Alabama Attorney General with a lengthy anti-LGBT track record but who in 2011 was on a three-judge panel that ruled that discrimination against a transgender person based on gender-nonconformity is sex discrimination and upheld a lower-court ruling that the firing of Atlanta transgender woman Vandy Beth Glenn from her job at the Georgia Capitol was based on sex discrimination.
In Friday’s ruling, Pryor seemed to step back from that earlier ruling – affirming an argument he made during the hearing in December. Then, Pryor tried to draw a line between discrimination based on gender nonconformity and sexual orientation. Pryor pointed to federal court decisions that ruled Title VII doesn't include discrimination based on sexual orientation.
“Because a claim of gender nonconformity is a behavior-based claim, not a status-based claim, a plaintiff still ‘must show that the employer actually relied on her gender tin making its decision,’” Pryor wrote in Friday’s decision.
Pryor was joined in the ruling by Judge Jose Martinez. Judge Robin Rosenbaum dissented, arguing that the discrimination Evans faced is banned under federal law.
“I argue that discrimination against a lesbian because she fails to comport with the employer’s view of what a woman should be violates Title VII’s ban on discrimination ‘because of . . . sex,’ and I support this argument with the text of Title VII, Supreme Court precedent, and this Court’s opinion in Glenn. I also note that logic is on my side. Of course, the concurrence is free to ignore my analysis rather than respond to it, but that doesn’t make it go away,” Rosenbaum wrote.
Lambda said it would ask for a rehearing of the case before the full appeals court.
“This is not the end of the road for us and certainly not for Jameka,” Lambda Legal attorney Greg Nevins said in a prepared statement.
“Keeping your job shouldn’t depend on whether or not you pass for straight. There is no way to draw a line between sexual orientation discrimination and discrimination based on gender nonconformity because not being straight is gender-nonconforming, period. Ninety percent of Americans believe that LGBT people should be treated equally in the workplace. The public is on the right side of history, and it’s time for the Eleventh Circuit to join us,” Nevins added.
Nevins, an attorney in Lambda’s office, argued Evans’ case before the appeals court in December.