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A federal appeals court in Atlanta last week reaffirmed its decision that workers aren’t protected against workplace discrimination based on sexual orientation, though two of the 11 judges strongly disagreed.
Gerald Lynn Bostock asserted in a lawsuit originally filed in May 2016 that he was fired from his job as a court child welfare services coordinator in Clayton County, just south of Atlanta, because he’s gay.
A federal judge last year dismissed his case, and a three-judge panel of the 11th U.S. Circuit Court of Appeals in May upheld that ruling. The panel said binding court precedent set by a 1979 decision says Title VII of the Civil Rights Act of 1964 law doesn’t prohibit employers from discriminating against workers based on sexual orientation. The full court on declined to reconsider that decision.
Circuit Judge Robin Rosenbaum, joined by Judge Jill Pryor, dissented from the July 18 decision.
“I continue to firmly believe that Title VII prohibits discrimination against gay and lesbian individuals because they fail to conform to their employers’ views when it comes to whom they should love,” Rosenbaum wrote.
The binding precedent cited in the court’s May decision includes no analysis of the issue, concluding simply that “Discharge for homosexuality is not prohibited by Title VII,” she wrote, adding that a 1989 U.S. Supreme Court ruling suggests that courts should reach the opposite conclusion.
Rather than clinging to a decades-old precedent, the full appeals court should consider the arguments and offer “a reasoned and principled explanation for our position on this issue,” Rosenbaum wrote.
“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,” she wrote.
Bostock’s attorneys had already appealed the May ruling to the U.S. Supreme Court, and that petition is pending.
“The issue of whether Title VII protects gay and lesbian employees is extraordinarily important not only for Mr. Bostock, but for all the gay and lesbian people working to earn a living in this country,” attorney Brian Sutherland said in an email Friday.
The Supreme Court punted on the issue in December when it declined to take up another Georgia case. Jameka Evans had sued Georgia Regional Hospital in Savannah, saying she faced discrimination and was effectively forced out of her security guard job because she’s a lesbian.
As in Bostock’s case, an 11th Circuit panel had ruled in March 2017 that Evans wasn’t protected from workplace discrimination based on sexual orientation, and the full court declined reconsideration.
In April 2017, the full 7th U.S. Circuit Court of Appeals in Chicago reached the opposite conclusion in a case filed by a former part-time instructor who said an Indiana community college didn’t hire her full time because she is a lesbian. The court stated decisively that the civil rights law’s protections apply to gay and lesbian workers just as they prohibit discrimination based on race, religion or national origin.
In January, the full 2nd U.S. Circuit Court of Appeals in New York reached a similar conclusion, ruling in favor of a gay skydiving instructor who said he was fired because he was gay. The opinion said that while that court and others had previously found that Title VII didn’t cover sexual orientation, “legal doctrine evolves.”
The 2nd Circuit decision has also been appealed to the Supreme Court. The conflicting opinions of the 2nd and 11th circuits could prompt the high court to weigh in and settle the question.
Bostock worked in the Juvenile Court of Clayton County. He’d worked for the county since January 2003 and had received good performance evaluations, his lawsuit says.
He joined a gay softball league in January 2013. His participation in that league and his sexual orientation were openly criticized by one or more people with decision-making power at his job, the lawsuit says.
He was told in April 2013 that an audit was being conducted on program funds he managed. Bostock contends the audit was meant to provide a pretext to discriminate against him “based on his sexual orientation and failure to conform to a gender stereotype.”
He was fired June 3, 2013, “for Conduct Unbecoming of a Clayton County Employee.”
Lawyers for the county argued in a response to his lawsuit that Title VII “was not designed or written to include protections for sexual orientation.” Bostock also fails to identify any characteristic that distinguishes him from a “typical male,” undercutting his gender stereotyping claim, they wrote.