LGBT attorneys for a former security guard fired for being gay took her case to an Atlanta-based federal appeals court on Thursday, arguing that she should get her day in court.
Jameka Evans sued Georgia Regional Hospital in April 2015 after her supervisors at the Savannah hospital allegedly harassed and targeted her for termination when they learned she is a lesbian. The lawsuit argued 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, the court ruled that sexual orientation was not a protected class under Title VII and dismissed the lawsuit without holding a hearing.
On Thursday, attorneys for Evans (top photo left) argued before a three-judge panel of the 11th Circuit U.S. Court of Appeals that her case should be allowed to move forward.
“The overall news from today is that we are going to win – eventually,” Greg Nevins (top photo right), an attorney with Lambda Legal's office in Atlanta, said after the hearing. “This was just to get her day in court.”
Lambda's lawsuit seeks to break new legal ground by arguing that sexual orientation is sex discrimination and covered by federal law. Title VII already protects gender-nonconformity – thanks in part to a 2011 decision from the same federal appeals court in a case involving Vandy Beth Glenn, a transgender woman in Atlanta.
Since 2014, Lambda Legal has been arguing in court cases that Title VII protects LGBT employees. In November, Nevins and Lambda attorneys asked the 7th Circuit U.S. Court of Appeals to reverse a lower court ruling against Kimberly Hively, who is a community college instructor in Indiana who was fired for being a lesbian. The lower court refused to hear Hively's case, which argued that she was fired over her sexual orientation and that her termination violated Title VII.
On Thursday, Nevins argued before Judges Jose Martinez, Robin Rosenbaum and William Pryor (second photo), who has been on lists of potential nominees to the U.S. Supreme Court under President-elect Donald Trump. Pryor blazed a trail of anti-gay views during his two terms as attorney general in Alabama. During his confirmation hearing to the federal bench in 2003, Pryor defended his comparisons of gay people to “prostitution, adultery, necrophilia, bestiality, possession of child pornography and even incest and pedophilia” and his rescheduling of a family trip to Disney World to avoid “Gay Days.”
But in 2011, Pryor was on the 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 Glenn from her job at the Georgia Capitol was based on sex discrimination.
On Thursday, 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.
“My concern about it is … sexual orientation is treated separately and is not actionable,” Pryor told Nevins. “This seems to be consistent with how every other circuit has addressed this.”
Pryor then hinted that Evans could have a claim of discrimination based on gender nonconformity. He also said that the appeals court is bound by a “strong prior precedent rule” and questioned Nevins on whether the Evans' case offered enough to provide a “clean and unequivocal” reason to go against prior court decisions and rule that Title VII protects against discrimination based on sexual orientation.
But Rosenbaum questioned how to make a legal distinction between the two types of discrimination.
“How can we intellectually, honestly say why one falls in the category of falling inside Title VII and the other doesn't,” Rosenbaum said.
Pryor responded by arguing that gender nonconformity is based on status while sexual orientation is based on behavior.
“That is an intellectually honest distinction, isn't it,” Pryor said.
“I'm not sure that it is,” Nevins retorted. “None of the circuits have grappled with that in an intellectually honest way.”
'I'm hopeful and I'm grateful'
The arguments from Nevins and Lambda were supported by the U.S. Equal Employment Opportunity Commission. EEOC attorney Gail Coleman told the court that discrimination based on sexual orientation is the same as sex discrimination, which violates federal law. She also referred to the court's decision in the Glenn case.
“In order to be defined as a gay man or lesbian, you are not defined by the quintessential norms,” Coleman said.
Pryor also pointed to the Glenn case and said it provided “very clear discrimination against someone based on gender nonconformity,” but noted that the Evans case doesn't necessarily provide the same evidence for discrimination based on sexual orientation. Pryor referenced an example Coleman cited of a gay employee getting married and then displaying a photo of the couple on their desk and being disciplined for it.
Pryor said the protections offered in the Glenn case would apply if the LGBT employee was disciplined for placing the photo of the married couple on their desk. But he stopped short of calling that discrimination based on sexual orientation.
“I may never know what that person's sexual orientation is,” Pryor said.
Coleman countered that “there is not a logical way to draw that line” in determining the motivation for the discrimination aimed at the LGBT employee – arguing that it's all discrimination protected by Title VII.
After the hearing, Nevins expressed optimism that the court would overturn the lower court's decision and order a hearing be held in the case. Chai Feldblum, an EEOC commissioner and the panel's first openly lesbian member, was on hand Thursday and said that the Civil Rights Act of 1964 should have been clear that LGBT people are protected.
“Instead, through our agency and the courts carved out the gay exception, the transgender exception,” Feldblum said. “We are now in the age of legal correction. Ultimately, this argument will prevail but there will be steps along the way.”
Evans, who traveled from her home in Savannah to attend the court hearing, said she was “humbled” to be in court.
“I'm hopeful and I'm grateful. I'm very humbled to be a part of this,” Evans said.
Attorneys for Georgia Regional Hospital skipped the hearing on Thursday.
Photos courtesy Lambda Legal