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11th Circuit Panel Splinters Over Lesbian’s Appeal of Title VII Dismissal

Posted on: March 12th, 2017 by Art Leonard No Comments

A three-judge panel of the Atlanta-based U.S. Court of Appeals for the 11th Circuit issued a divided ruling on March 10 holding that a lesbian plaintiff suing for discrimination under Title VII of the Civil Rights Act of 1964 could file an amended complaint alleging that she suffered discrimination because of sex stereotyping, but upholding the district court’s dismissal of her claim that sexual orientation discrimination violates the statute.  A dissenting judge, agreeing with the Equal Employment Opportunity Commission (EEOC), which submitted an amicus brief in the case, and Lambda Legal, which was appointed to represent the plaintiff on appeal, argued that the plaintiff should be allowed to pursue her sexual orientation discrimination claim as well.  Lambda Legal, representing the appellant, immediately announced that it would petition for rehearing “en banc” before the entire 11th Circuit bench.

Unsurprisingly, the judges rejecting the sexual orientation claim, Circuit Judge William Pryor and Florida District Judge Jose Martinez, were appointed by President George W. Bush.  The dissenter, Circuit Judge Robin Rosenbaum, was appointed by President Barack Obama.

This case is one of appeals recently argued in three different federal circuits presenting the question whether sexual orientation discrimination claims are covered as “discrimination because of sex” under Title VII.  The Chicago-based 7th Circuit heard argument “en banc” on November 30, and the New York-based 2nd Circuit heard three-judge panel argument in two different appeals in January. So far, no federal circuit court has ruled favorably on such a claim, although many have ruled that gay plaintiffs can sue under Title VII on gender-based sex stereotyping claims, depending on their factual allegations.  There are older court of appeals precedents in most circuits rejecting sexual orientation discrimination claims, as such, under Title VII.  The Supreme Court has never directly ruled on the question.

In this case, Evans v. Georgia Regional Hospital, plaintiff Jameka Evans claimed that she was discriminated against in her position as a security officer at the hospital because of both gender non-conformity and sexual orientation.  Evans is a “butch” lesbian who claims she was discriminated against because she failed to carry herself in a “traditional womanly manner” and that “it was ‘evident’ that she identified with the male gender, because of how she presented herself – ‘(male uniform, low male haircut, shoes, etc.’),” wrote Judge Martinez.

She filed her case in federal district court in Savanah, Georgia, without a lawyer (“pro se”). The district judge, J. Randal Hall, referred her case to a magistrate judge to rule on procedural issues and “screen” the claim, as is usually done with “pro se” cases.  Magistrate Judge George R. Smith found procedural problems and, applying old circuit precedent, held that the claim of sexual orientation discrimination could not be brought under Title VII.  Smith recommended dismissal of the case. Lambda Legal submitted an amicus brief, urging Judge Hall to reject the Magistrate’s recommendation, but Hall dismissed without reference to Lambda’s arguments.  However, Hall then appointed Lambda to represent Evans on appeal to the 11th Circuit, and Gregory Nevins from Lambda’s Atlanta office argued the appeal.  The hospital never responded to the complaint and was not represented at the one-sided argument before the court of appeals.

At the heart of this appeal and of the other pending cases on the same question is the effect of two Supreme Court rulings, Price Waterhouse v. Hopkins and Oncale v. Sundowner Offshore Services. In the first of these, the Court ruled that an employer’s denial of a partnership to a woman because of her failure to conform to the employer’s stereotyped view of how women should behave and present themselves was evidence of discrimination “because of sex” in violation of Title VII.  In the second, the Supreme Court overturned the lower court’s dismissal of a same-sex harassment case in a unanimous opinion authored by Justice Antonin Scalia holding that the interpretation of discrimination “because of sex” was not limited based on the intentions of Congress when it enacted the statute in 1964.  Scalia commented that “comparable evils” to those that Congress sought to address might be covered by the statute, and that we are governed by the language of our statutes as adopted by Congress, not by the presumed intentions expressed by individual legislators or committees as reflected in the legislative history.  Thus, a claim by a man that he was subjected to sexual harassment by male co-workers could be dealt with under Title VII, even if members of Congress did not anticipate or intend that such cases could be brought under Title VII.

LGBT rights advocates have used these two Supreme Court cases to argue that gay and transgender plaintiffs who suffer discrimination because of their sexual orientation or gender identity should be able to bring sex discrimination claims under Title VII. Sex stereotyping is arguably present to some extent in all such cases and, at a more fundamental level, anti-gay and anti-trans discrimination is “necessarily” because of sex.  These arguments persuaded the EEOC during the Obama Administration, resulting in administrative rulings in cases raised by LGBT federal employees, and have also persuaded some federal district judges.  Several federal courts of appeals have accepted the sex stereotyping argument, but only to a limited extent, according to the extensive concurring opinion in Evans’s case by Judge Pryor.  So far, no federal circuit court has accepted the argument that an otherwise gender-conforming gay person can bring a sex discrimination claim under Title VII.

Judge Martinez premised his vote to reject the sexual orientation discrimination claim on a 1979 decision by the 5th Circuit, Blum v. Gulf Oil Corporation, 597 F.2d 936, in which that court said that “discharge for homosexuality is not prohibited by Title VII” as an alternative basis for its ruling.  Effective on September 30, 1981, a statute divided the old 5th Circuit in half, assigning Georgia to the newly-created 11th Circuit. At that time, the 11th Circuit ruled that former 5th Circuit cases would be treated as precedent in the new 11th Circuit, so this case counts as a binding circuit precedent.  Lambda argued that the 1979 ruling is no longer valid in light of the 1989 Price Waterhouse decision and the 1999 Oncale decision.  Martinez and Pryor both rejected that argument, but dissenting Judge Rosenbaum embraced it.  At the oral argument, Judge Pryor had observed that in light of the Blum precedent, the three judge panel most likely could not rule in favor of Evans on this point, as only an en banc panel could reverse circuit precedents.

As to the sex stereotyping claim, Martinez asserted that Evans’ pro se complaint “failed to plead facts sufficient to create a plausible inference that she suffered discrimination. In other words, Evans did not provide enough factual matter to plausibly suggest that her decision to present herself in a masculine manner led to the alleged adverse employment actions.”  However, he wrote, it was inappropriate for the district judge to dismiss her case outright rather than allowing her to file an amended complaint, since her theory of sex stereotyping discrimination was a theory accepted in the 11th Circuit and it was possible that, in light of the court’s discussion of her claim, she might be able to meet these pleading deficiencies in an amended complaint.  It is customary in pro se cases to allow the plaintiff to file an amended complaint if she is asserting a claim under a valid legal theory and there is a possibility that a better framed complaint could survive screening.

Pryor’s concurring opinion agreed that the magistrate erred in asserting that a sex stereotyping argument by a lesbian plaintiff was just “another way to claim discrimination based on sexual orientation,” and thus Evans should get a second chance to frame a complaint that might survive review. However, he argued at length to refute the arguments by the EEOC and Judge Rosenbaum that sexual orientation discrimination claims were “necessarily” sex discrimination claims.  Pryor insisted on a strict distinction between “status” and “conduct,” arguing that sex stereotyping claims were tied to the plaintiff’s conduct in failing to conform to gender stereotypes.  Thus, a claim of sexual orientation discrimination not accompanied by factual allegations about the plaintiff’s gender non-conformity fell short, in his view, of coming within the compass of discrimination “because of sex.”  He was not willing to accept the argument that being sexually attracted to members of the same-sex would suffice to constitute non-conformity with sexual stereotypes.

Judge Rosenbaum took a diametrically opposite approach, embracing a theoretical description of how Price Waterhouse had changed Title VII law by extending prior sex stereotyping cases to adopt a “prescriptive stereotyping” model. In prior cases, the Supreme Court had condemned “ascriptive stereotyping,” situations where an employer discriminated against a class of employees because of a stereotype about the class.  For example, an employer required women to contribute more to its pension plan than men in order to get the same monthly benefits upon retirement, based on the stereotype that women live longer than men so it would all “even out” in the end.  The Supreme Court condemned this practice as sex discrimination, finding that the statute protects individuals from being treated based on class-based stereotypes.  In Price Waterhouse, the Court for the first time condemned “prescriptive stereotyping,” where an employer discriminated against an employee because she failed to conform to a sexual stereotype, presenting a demeanor which was not traditionally feminine.

Applying this to the sexual orientation case, Rosenbaum accepted the argument that in such cases the employer was discriminating because the employee violated the stereotypical view that men are supposed to be attracted to women, not to men, and vice versa. Furthermore, she found that it was clearly sex discrimination to treat a woman differently based on whether she was attracted to men or women.

Judge Rosenbaum argued that Pryor’s opinion was “at war” with his vote a decade ago that allowed a sex discrimination claim under the Equal Protection Clause by a transgender employee of the Georgia legislature. Indeed, Pryor’s vote in the former case, Glenn v. Brumby, had given the plaintiff hope in this case that the panel might rule in her favor.  Pryor devoted considerable effort in his concurring opinion to explaining why he found this case to be different, once again relying on the “status” and “conduct” distinction.  Cross-dressing and announcing plans to transition were “conduct,” in his view, while having a sexual orientation was “status.”  He argued that sex stereotyping theory was concerned with conduct, not status, in its focus on gender non-conformity.

The sharp division among the judges may lead the 11th Circuit to agree to hear the case en banc, especially noting that one member of the panel was a district judge.  The federal judiciary is so short-handed as a result of the Republican-controlled Senate’s stonewalling of President Obama’s court of appeals nominees during his second term that it has become increasingly common for some particularly short-staffed circuits to fill-out three-judge panels by “designating” district court judges to provide the third member to make up a panel.  These district judges do not participate if the case is reargued en banc.  Furthermore, with the 7th Circuit having held en banc argument on this question recently, it seems clear that many federal judges believe it is time to reconsider the issue.  Meanwhile, decisions from the 7th and 2nd Circuits are eagerly awaited, especially if they create a “circuit split” that would entice the Supreme Court to agree to take up the issue.

Civil Rights Through Administrative Action: Can It Be Effective?

Posted on: October 23rd, 2015 by Art Leonard No Comments

When legislatures refuse to act on proposals to protect LGBT people from discrimination, can civil rights agencies and executive officials just go ahead and extend the protection on their own?  Some recent events put this question sharply into play.

In July 2014, President Obama signed an executive order requiring federal contractors to adopt policies banning discrimination because of sexual orientation or gender identity and extending protection against gender identity discrimination to applicants and employees in the executive branch of the federal government.  (Prior executive orders first adopted during the Clinton administration by agency heads as well as the president extended protection against sexual orientation discrimination to executive branch employees.)  Even before President Obama’s action, the Equal Employment Opportunity Commission (EEOC) had issued an administrative ruling in 2012 that the ban on sex discrimination in Title VII of the Civil Rights Act of 1964 prohibited discrimination because of gender identity, a conclusion that was later confirmed by a Justice Department ruling in the same case, Macy v. Holder.

This past summer, the EEOC took a further step, ruling administratively in the case of a gay air traffic controller who had been denied a permanent position by the Federal Aviation Administration under circumstances suggesting that homophobia may have influenced the decision.  The gay man, David Baldwin, filed an internal discrimination claim within the FAA, asserting a violation of Title VII’s sex discrimination ban.  That agency said Title VII didn’t apply, but the EEOC reversed the ruling, holding that sexual orientation discrimination claims can be raised under Title VII, in an opinion announced on July 15.  This left Baldwin with a choice: he could litigate his discrimination claim administratively, or he could, with the authorization of the EEOC, take his dispute to federal court. Baldwin’s attorney announced recently that he will pursue his Title VII claim in federal court.

Most recently, on October 22, New York Governor Andrew Cuomo announced that the New York State Division of Human Rights will be publishing a proposed regulation in the state register on November 4, interpreting the state’s Human Rights Law ban on discrimination because of sex or disability as providing protection against discrimination for transgender people.  The Division will treat “gender dysphoria” as the kind of diagnosable medical condition that falls within the statutory definition of a disability, and it will take the position that discriminating against somebody because of their gender identity is the same for legal purposes as discriminating because of their sex.

These actions by President Obama, Governor Cuomo, the EEOC and the New York State Division come in the face of the failure by Congress or the New York legislature to approve pending legislative proposals to adopt these policies.  They are arguing, in the face of such legislative inaction, that existing laws already provide a basis for acting against such discrimination. These executive and administrative actions can have concrete consequences.  Companies with substantial federal contracts will have to adopt non-discrimination policies if they want those contracts renewed.  Employees who encounter gender identity discrimination will be able to file charges with the EEOC and the State Division of Human Rights, those agencies will investigate the charges, and if they find them meritorious, may attempt to negotiate settlements on behalf of the individuals, take their claims to court, or authorize them to file their own lawsuits, as Baldwin is doing against the FAA.  In fact, the EEOC recently reported that they had administratively resolved 846 discrimination claims nationwide on behalf of LGBT plaintiffs during 2014, the last year for which they have complete statistics, just on the basis of these internal policy interpretations.

The important question now is whether the courts will cooperate when an alleged discriminator resists the agencies’ interpretations?  After all, both the federal and state constitutions give the power to make new laws to the legislatures, not to elected executives or administrative agencies.  The EEOC and the State Division of Human Rights can interpret existing laws, but they can’t manufacture “new” substantive legal rules.  Some defendants in these lawsuits can be counted on to raise the objection that the relevant statutes do not forbid this kind of discrimination.  Courts will have to determine whether these new interpretations are legitimate, and that will turn heavily on the judicial philosophies of the particular judges deciding these cases.

Shortly after Title VII of the federal civil rights act went into effect in July 1965, the EEOC was faced with the question whether gay or transgender people were protected from discrimination by that statute, and its unequivocal answer was “no,” in line with the response of numerous federal courts in early cases.  The EEOC maintained that position through half a century, even as the courts were “evolving” on the issue in light of a Supreme Court decision in 1989, Price Waterhouse v. Hopkins, finding that “sex stereotyping” by an employer could be evidence of unlawful intentional sex discrimination.  By early in this century, several federal courts — include courts of appeals — had accepted this sex stereotyping theory on behalf of some gay and transgender discrimination plaintiffs, and a consensus seemed to be emerging among federal courts that gender identity discrimination could violate Title VII’s sex discrimination ban.  The EEOC relied on these rulings in 2012 when it issued its opinion in Macy v. Holder.

Over the past few years, a handful of federal trial judges have also used the sex stereotyping theory in discrimination cases brought by gay people, and the EEOC seized upon some these opinions this summer, as it celebrated its 50th anniversary of enforcing Title VII, when it ruled on David Baldwin’s discrimination complaint.

One of the biggest barriers to getting trial judges to accept these new interpretations is the system of precedent followed in the court system.  A trial judge is bound by the rulings of the appellate courts.  A federal district court is bound by the rulings of the court of appeals in the circuit in which it is located.

On September 9, a sexual orientation discrimination plaintiff confronted this problem in a federal lawsuit in Florida.  Barbara Burrows sued the College of Central Florida claiming that her sexual orientation was one of the reasons she was fired and argued that the EEOC’s recent decision supported her claim that Title VII applied to her case.  District Judge James Moody, observed that although “the EEOC’s decision is relevant and would be considered persuasive authority, it is not controlling.”  He evidently considered that he was not free to accept her argument, writing, “Until the Supreme Court or Eleventh Circuit recognizes the opinion expressed in the EEOC’s decision as the prevailing legal opinion, the Court declines to reconsider in light of the EEOC’s decision.”

Several other federal court rulings issued since the EEOC’s July 15 Baldwin opinion have not even mentioned it while reaffirming that sexual orientation discrimination claims cannot be asserted under Title VII.  For example, in a dispute between Julio Rodriguez and the New York City Health and Hospitals Corporation, U.S. District Judge Brian M. Cogan in Brooklyn wrote on September 8, “The Second Circuit has decided the question of whether ‘sex’ under Title VII includes ‘sexual orientation’ as a protected class.  It has explained that ‘the law is well-settled in this circuit and in all others to have reached the question that . . . Title VII does not prohibit harassment or discrimination because of sexual orientation.’  Therefore, plaintiff’s argument that he ‘is clearly a member of a protected class, because he identifies as bisexual,’ is wrong.”

Another federal district judge in Brooklyn, John Gleeson, issued a decision on October 16 in a discrimination case brought by Steven D. Moore against Greyhound Bus Lines.  Moore alleged discrimination because of his “sexual preference” and religion.  While finding that Moore’s factual allegations did not meeting the requirements for a discrimination claim in any event, Judge Gleeson dropped a footnote at the end of his opinion, reminding Moore that “Title VII does not apply to allegations of discrimination on the basis of sexual orientation,” referring to the same 2nd Circuit opinion from 2000 that Judge Cogan relied on in his ruling on Rodriguez’s case.

Similarly, in a suit by Jameka K. Evans against Georgia Regional Hospital in the U.S. District Court for the Southern District of Georgia, decided on September 10, U.S. Magistrate Judge G.R. Smith undertook a lengthy discussion of the numerous federal court rulings rejecting sexual orientation claims under Title VII, not once mentioning the EEOC’s Baldwin decision.

To make some headway on this issue a case has to go to the court of appeals. Lambda Legal announced that they have taken that step, urging the 7th Circuit Court of Appeals in Chicago to reverse a lower court ruling and allow a lesbian, Kimberly Hively, to litigate her discrimination claim against Ivy Tech Community College.  Ivy Tech had persuaded the federal district court in the Northern District of Indiana to dismiss Hively’s Title VII case, successfully arguing that Title VII does not apply to sexual orientation claims.  In a hearing before a three-judge panel of the court held on September 30, Lambda argued that the EEOC opinion, together with a handful of earlier federal trial court decisions cited by the EEOC, provide persuasive reasons for the 7th Circuit to set aside its own prior precedents on this issue and embrace the new approach to interpreting “sex” under Title VII.   A three-judge panel of the 7th Circuit may consider itself bound by prior circuit precedent, but Lambda could then petition for an “en banc” rehearing by the full 7th Circuit bench, which could overrule its old precedent.  Or this case could be the vehicle to get the issue before the Supreme Court.