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11th Circuit Judge Criticizes Colleagues’ Response To Sexual Orientation Under Title VII

On May 10, 2018, a three-judge panel on the Eleventh Circuit (which covers Alabama, Florida, and Georgia) affirmed dismissal of an employment discrimination lawsuit under Title VII of the Civil Rights Act of 1964.  Bostock v. Clayton Cnty. Bd. of Comm’rs, No. 17-13801 (11th Cir. May 10, 2018).  The panel concluded that, under Eleventh Circuit precedent, Title VII does not prohibit discrimination based on an employee’s sexual orientation.  Id. (“This circuit has previously held that ‘[d]ischarge for homosexuality is not prohibited by Title VII.”) (quoting Blum v. Golf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979)).  Blum was confirmed last year by Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1256 (11th Cir. 2017), cert. denied, 138 S. Ct. 557 (2017).  The panel said its hands were tied absent Supreme Court direction to the contrary.

Bostock requested that the Eleventh Circuit rehear the case en banc.  On July 18, the court denied Bostock’s request.  Bostock v. Clayton Cnty. Bd. of Comm’rs, No. 17-13801 (11th Cir. July 18, 2018).

Two judges on the Eleventh Circuit, however, joined for a passionate dissent from that denial.  Circuit Judge Rosenbaum authored the dissent and was joined by Judge Jill Pryor.

In Judge Rosenbaum’s words, the issue in Bostock was “whether Title VII protects gay and lesbian individuals from discrimination because their sexual preferences do not conform to their employers’ views of whom individuals of their respective genders should love.”  Judge Rosenbaum opined that this issue “is indisputably en-banc-worthy.”  Judge Rosenbaum lambasted her colleagues for giving short shrift to the issue when other appellate courts have dedicated 163 pages (Zarda v. Altitude, Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc)), and 69 pages (Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc)) to the issue.

The dissent also sets forth a number of statistics showing the significance of the topic, including:  of the approximately 8 million Americans who identified as lesbian, gay, or bisexual in 2011, roughly 25% reported experiencing workplace discrimination because their sexual preferences did not match an employer’s expectations.

The Eleventh Circuit has previously held that the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), meant that Title VII precludes discrimination against transgender individuals because they fail to conform to their employers’ stereotypes of how a member of the individual’s birth-assigned gender should act or feel.  See Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011).  The majority who denied rehearing said that Bostock had not appealed his gender stereotyping claim.

Judge Rosenbuam continued:  “Yet rather than address this objectively en-banc-worthy issue, we instead cling to a 39-year-old precedent, Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979), that was decided ten years before Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court precedent that governs the issue and requires us to reach the opposite conclusion of Blum.”  “I cannot explain why a majority of our Court is content to rely on the precedential equivalent of an Edsel with a missing engine, when it comes to an issue that affects so many people.”

Bostock’s petition for certiorari to the Supreme Court is currently pending.

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