Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Monday, March 13, 2017

11th Circuit Decision Misunderstands Why Sex Discrimination is Discrimination

Slate, 11th Circuit Rules Title VII Does Not Prohibit Anti-Gay Discrimination

On Friday, the U.S. Court of Appeals for the 11th Circuit ruled that Title VII of the Civil Rights Act of 1964 does not prohibit employers from discriminating against workers on the basis of their sexual orientation. Many federal courts—in addition to the Equal Employment Opportunity Commission—have reached the opposition conclusion, finding that Title VII’s ban on “sex discrimination” encompasses anti-gay discrimination. But by a 2–1 decision, a panel for the 11thCircuit bucked this trend, reading Title VII as narrowly as possible and, in the process, ignoring at least one critical Supreme Court precedent.

 

Friday’s decision, Evans v Georgia Regional Hospital, involved the case of Jameka Evans, a lesbian who presents as traditionally masculine. She sued her employer, alleging that she endured hostility and harassment in the workplace in violation of Title VII.*

 

That left it up to Judge Robin S. Rosenbaum to explain, in dissent, all the ways that Pryor and the majority went terribly wrong. As Rosenbaum succinctly explained:

Plain and simple, when a woman alleges, as Evans has, that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer’s image of what women should be—specifically, that women should be sexually attracted to men only. And it is utter fiction to suggest that she was not discriminated against for failing to comport with her employer’s stereotyped view of women. That is discrimination “because of … sex.”

Rosenbaum pointed out that the Supreme Court held in 1989’s Price Waterhouse v. Hopkins that sex discrimination encompasses sex stereotyping. This decision, she explained, clearly abrogated the 1979 decision relied upon by the majority. As the law stands today, employers are indisputably barred from mistreating workers on the basis of sex-based stereotypes. Anti-gay discrimination is motivated by precisely such a stereotype: the conviction that men and women must only be attracted to individuals of the opposite sex. Therefore, sexual orientation discrimination must fall under the scope of sex discrimination.

 

In a lengthy retort, Rosenbaum also took a satisfying swipe at Pryor’s “irrelevant journey through some of the different ways in which a gay person may express—or suppress—her sexual attraction.” And she rebutted the notion that because Title VII was not designed to protect gay people, it cannot be read to do so now. The Supreme Court unanimously rejected a similar argument in 1998’s Oncale v. Sundowner, when a discriminatory employer argued that the law wasn’t passed to stop male-on-male sexual harassment. This form of harassment, Justice Antonin Scalia wrote for the majority, was “assuredly not the principal evil Congress was concerned with when it enacted Title VII.” But, he noted:

Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.

Given this principle, Rosenbaum wrote, “the mere fact that we may believe that Congress may not have specifically intended the meaning of what a statute actually says is not a basis for failing to apply the textual language.”

http://lawprofessors.typepad.com/gender_law/2017/03/11th-circuit-decision-misunderstands-why-sex-discrimination-is-discrimination.html

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