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Posts Tagged ‘U.S. Court of Appeals for the 7th Circuit’

Supreme Court Denies Review in Title VII Sexual Orientation Discrimination Case

Posted on: December 11th, 2017 by Art Leonard No Comments

The U.S. Supreme Court announced on December 11 that it will not review a decision by a three-judge panel of the Atlanta-based 11th Circuit Court of Appeals, which ruled on March 10 that a lesbian formerly employed as a security guard at a Georgia hospital could not sue for sexual orientation discrimination under Title VII of the Civil Rights Act of 1964.  The full 11th Circuit denied a motion to reconsider the case on July 10, and Lambda Legal, representing plaintiff Jameka Evans, filed a petition with the Supreme Court seeking review on September 7.  Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), rehearing en banc denied, 7/6/2017, cert. denied, 2017 WL 4012214 (12/11/2017).

At the heart of Lambda’s petition was an urgent request to the Court to resolve a split among the lower federal courts and within the federal government itself on the question whether Title VII, which bans employment discrimination because of sex by employers that have at least 15 employees, can be interpreted to ban discrimination because of sexual orientation.

Nobody can deny that members of Congress voting on the Civil Rights Act in 1964 were not thinking about banning sexual orientation discrimination at that time, but their adoption of a general ban on sex discrimination in employment has been developed by the courts over more than half a century to encompass a wide range of discriminatory conduct reaching far beyond the simple proposition that employers cannot discriminate against an individual because she is a woman or he is a man.

Early in the history of Title VII, the Supreme Court ruled that employers could not treat people differently because of generalizations about men and women, and by the late 1970s had accepted the proposition that workplace harassment of women was a form of sex discrimination. In a key ruling in 1989, the Court held that discrimination against a woman because the employer considered her inadequately feminine in her appearance or behavior was a form of sex discrimination, under what was called the sex stereotype theory, and during the 1990s the Court ruled that a victim of workplace same-sex harassment could sue under Title VII, overruling a lower court decision that a man could sue for harassment only if he was being harassed by a woman, not by other men.  In that decision for a unanimous court, Justice Antonin Scalia opined that Title VII was not restricted to the “evils” identified by Congress in 1964, but could extend to “reasonably comparable evils” to effectuate the legislative purpose of achieving a non-discriminatory workplace.

By the early years of this century, lower federal courts had begun to accept the argument that the sex stereotype theory provided a basis to overrule earlier decisions that transgender people were not protected from discrimination under Title VII.  There is an emerging consensus among the lower federal courts, bolstered by rulings of the Equal Employment Opportunity Commission (EEOC), that gender identity discrimination is clearly discrimination because of sex, and so the 11th Circuit Court of Appeals ruled several years ago in a case involving a transgender woman fired from a research position at the Georgia legislature.

However, the idea that some variant of the sex stereotype theory could also expand Title VII to protect lesbian, gay or bisexual employees took longer to emerge.  It was not until 2015 that the EEOC issued a decision in the Baldwin case concluding that sexual orientation discrimination is a form of sex discrimination, in part responding to the sex stereotype decisions in the lower federal courts.  And it was not until April 4 of this year that a federal appeals court, the Chicago-based 7th Circuit Court of Appeals, approved that theory in a strongly worded opinion by a decisive majority of the entire 11-judge circuit bench, just a few weeks after the 11th Circuit panel ruling in the Jameka Evans case.  Writing for the 7th Circuit in the Hively  case, Judge Diane Wood said, “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.’”

The 11th Circuit panel’s 2-1 decision to reject Jameka Evans’ sexual orientation discrimination claim seemed a distinct setback in light of these developments.  However, consistent with the 11th Circuit’s prior gender identity discrimination ruling, one of the judges in the majority and the dissenting judge agreed that Evans’ Title VII claim could be revived using the sex stereotype theory based on how she dressed and behaved, and sent the case back to the lower court on that basis.  The dissenting judge would have gone further and allowed Evans’ sexual orientation discrimination claim to proceed under Title VII.  The other judge in the majority strained to distinguish this case from the circuit’s prior sex stereotype ruling, and would have dismissed the case outright.

The 7th Circuit’s decision in April opened up a split among the circuit courts in light of a string of rulings by several different circuit courts over the past several decades rejecting sexual orientation discrimination claims by gay litigants, although several of those circuits have since embraced the sex stereotype theory to allow gay litigants to bring sex discrimination claims under Title VII if they could plausibly allege that they suffered discrimination because of gender nonconforming dress or conduct.  Other courts took the position that as long as the plaintiff’s sexual orientation appeared to be the main reason why they suffered discrimination, they could not bring a Title VII claim.

In recent years, several federal trial judges have approved an alternative argument: that same-sex attraction is itself a departure from widely-held stereotypes of what it means to be a man or a woman, and thus that discrimination motivated by the victim’s same-sex attraction is a form of sex discrimination under Title VII.  Within the New York-based 2nd Circuit, several trial judges have recently embraced this view, but three-judge panels of the Court of Appeals consistently rejected it.  Some progress was made last spring, however, when a three-judge panel in Christiansen v. Omnicom Group overruled a trial judge to find that a plaintiff whose sexual orientation was clearly a motivation for his discharge could bring a sex stereotype Title VII claim when he could plausibly allege behavioral nonconformity apart from his same-sex attraction.

More recently, however, the 2nd Circuit agreed to grant en banc reconsideration to the underlying question and heard oral argument in September in Zarda v. Altitude Express on whether sexual orientation discrimination, as such, is outlawed by Title VII.  That case involved a gay male plaintiff whose attempt to rely alternatively on a sex stereotype claim had been rejected by the trial judge in line with 2nd Circuit precedent.  Plaintiff Donald Zarda died while the case was pending, but it is being carried on by his Estate.  Observers at the oral argument thought that a majority of the judges of the full circuit bench were likely to follow the lead of the 7th Circuit and expand the coverage of Title VII in the 2nd Circuit (which covers Connecticut, Vermont and New York).  With argument having been held more than two months ago, a decision could be imminent.

Much of the media comment about the Zarda case, as well as the questioning by the judges, focused on the spectacle of the federal government opposing itself in court.  The EEOC filed an amicus brief in support of the Zarda Estate, and sent an attorney to argue in favor of Title VII coverage.  The Justice Department filed a brief in support of the employer, and sent an attorney to argue that the three-judge panel had correctly rejected the plaintiff’s Title VII claim.  The politics of the situation was obvious: The Trump appointees now running the Justice Department had changed the Department’s position (over the reported protest of career professionals in the Department), while the holdover majority at the EEOC was standing firm by the decision that agency made in 2015.  As Trump’s appointment of new commissioners changes the agency’s political complexion, this internal split is likely to be resolved against Title VII protection for LGBT people.

This is clearly a hot controversy on a question with national import, so why did the Supreme Court refuse to hear the case?  The Court does not customarily announce its reasons for denying review, and did not do so this time.  None of the justices dissented from the denial of review, either.

A refusal to review a case is not a decision on the merits by the Court, and does not mean that the Court approves the 11th Circuit Court of Appeals’ decision.  It is merely a determination by the Court, which exercises tight control over its docket, not to review the case.  Hypothesizing a rationale, one might note that the plaintiff here has not suffered a final dismissal of her case, having been allowed by the 11th Circuit to file an amended complaint focusing on sex stereotype instead of sexual orientation, so she can still have her day in court and there is no pressing need for the Court to resolve the circuit split in her case.  One might also note that Georgia Regional Hospital did not even appear before the 11th Circuit to argue its side of the case, and did not file papers opposing Lambda Legal’s petition until requested to do so by the Court.

On October 11, the Supreme Court Clerk’s office distributed the Lambda petition and some amicus briefs supporting it to the justices in anticipation of their conference to be held October 27. The lack of a response by Georgia Regional Hospital evidently sparked concern from some of the justices, who directed the Clerk to ask the Hospital to file a response, which was filed by Georgia’s Attorney General on November 9, and the case was then put on the agenda for the Court’s December 8 conference, at which the decision was made to deny review.  The responsive papers argued, among other things, that the Hospital had not been properly served with the Complaint that initiated the lawsuit. Those kinds of procedural issues sometimes deter the Court from taking up a case.

For whatever reason, the Court has put off deciding this issue, most likely for the remainder of the current Term. The last argument day on the Court’s calendar is April 25, and the last day for announcing decisions is June 25.  Even if the 2nd Circuit promptly issues a decision in the Zarda case, the losing party would have a few months to file a petition for Supreme Court review, followed by a month for the winner filing papers responding to the Petition.  Even if the Court then grants a petition for review, thus starting the clock running for filing merits briefs and amicus briefs, it is highly likely that once all these papers are submitted, it will be too late in the Term for the case to be argued, so it would end up on the argument calendar for Fall 2018.

Which raises the further question of who would be on the Court when this issue is finally before it? Rumors of retirements are rife, and they center on the oldest justices, pro-LGBT Ruth Bader Ginsburg and conservative but generally pro-gay Anthony Kennedy.  If President Trump gets to nominate successors to either of them, the Court’s receptivity to gay rights arguments is likely to be adversely affected.

Supreme Court May Consider Whether Federal Law Already Outlaws Sexual Orientation Discrimination

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

Lambda Legal has announced that it will petition the Supreme Court to decide whether Title VII of the Civil Rights Act of 1964, which bans employment discrimination because of sex, also bans discrimination because of sexual orientation. Lambda made the announcement on July 6, when the U.S. Court of Appeals for the 11th Circuit, based in Atlanta, announced that the full circuit court would not reconsider a decision by a three-judge panel that had ruled on March 10 against such a claim in a lawsuit by Jameka K. Evans, a lesbian security guard who was suing Georgia Regional Hospital for sexual orientation discrimination.

The question whether Title VII can be interpreted to cover sexual orientation claims got a big boost several months ago when the full Chicago-based 7th Circuit ruled that a lesbian academic, Kimberly Hively, could sue an Indiana community college for sexual orientation discrimination under the federal sex discrimination law, overruling prior panel decisions from that circuit.  The 7th Circuit was the first federal appeals court to rule in favor of such coverage.  Lambda Legal represented Hively in her appeal to the 7th Circuit.

Title VII, adopted in 1964 as part of the federal Civil Rights Act, did not even include sex as a prohibited ground of discrimination in the bill that came to the floor of the House of Representatives for debate. The primary focus of the debate was race discrimination. But a Virginia representative, Howard Smith, an opponent of the bill, introduced a floor amendment to add sex.  The amendment was approved by an odd coalition of liberals and conservatives, the former out of a desire to advance employment rights for women, many of the later hoping that adding sex to the bill would make it too controversial to pass. However, the amended bill was passed by the House and sent to the Senate, where a lengthy filibuster delayed a floor vote for months before it passed without much discussion about the meaning of the inclusion of sex as a prohibited ground for employment discrimination.  (The sex amendment did not apply to other parts of the bill, and the employment discrimination title is the only part of the 1964 Act that outlaws sex discrimination.)

Within a few years both the Equal Employment Opportunity Commission and federal courts had issued decisions rejecting discrimination claims from LGBT plaintiffs, holding that Congress did not intend to address homosexuality or transsexualism (as it was then called) in this law. The judicial consensus against coverage did not start to break down until after the Supreme Court’s 1989 decision on Ann Hopkin’s sex discrimination lawsuit against Price Waterhouse.  The accounting firm had denied her partnership application.  The Court accepted her argument that sex stereotyping had infected the process, based on sexist comments by partners of the firm concerning her failure to conform to their image of a proper “lady partner.”

Within a few years, litigators began to persuade federal judges that discrimination claims by transgender plaintiffs also involved sex stereotyping. By definition a transgender person does not conform to stereotypes about their sex as identified at birth, and by now a near consensus has emerged among the federal courts of appeals that discrimination because of gender identity or expression is a form of sex discrimination under the stereotype theory.  The Equal Employment Opportunity Commission changed its position as well, following the lead of some of the court decisions, in 2012.

Advocates for gay plaintiffs also raised the stereotype theory, but with mixed success. Most federal circuit courts were unwilling to accept it unless the plaintiff could show that he or she was gender-nonconforming in some obvious way, such as effeminacy in men or masculinity (akin to the drill sergeant demeanor of Ann Hopkins) in women.  The courts generally rejected the argument that to have a homosexual or bisexual orientation was itself a violation of employer’s stereotypes about how men and women were supposed to act, and some circuit courts, including the New York-based 2nd Circuit, had ruled that if sexual orientation was the “real reason” for discrimination, a Title VII claim must fail, even if the plaintiff was gender nonconforming.  Within the past few years, however, several district court and the EEOC have accepted the stereotype argument and other arguments insisting that discrimination because of sexual orientation is always, as a practical matter, about the sex of the plaintiff.  This year, for the first time, a federal appeals court, the Chicago-based 7th Circuit, did so in the Hively case.  A split among the circuits about the interpretation of a federal statute is listed by the Supreme Court in its practice rules as the kind of case it is likely to accept for review.

The Supreme Court has been asked in the past to consider whether Title VII could be interpreted to cover sexual orientation and gender identity claims, but it has always rejected the invitation, leaving in place the lower court rulings.

However, last year the Court signaled its interest in the question whether sex discrimination, as such, includes gender identity discrimination, when it agreed to review a ruling by the Richmond-based 4th Circuit Court of Appeals, which held that the district court should not have dismissed a sex-discrimination claim by Gavin Grimm, a transgender high school student, under Title IX of the Education Amendments of 1972, which bans sex discrimination by schools that get federal money.  The 4th Circuit held in Grimm’s case that the district court should have deferred to an interpretation of the Title IX regulations by the Obama Administration’s Department of Education, which had decided to follow the lead of the EEOC and federal courts in Title VII cases and accept the sex stereotyping theory for gender identity discrimination claims. Shortly before the Supreme Court was scheduled to hear arguments in this case, however, the Trump Administration “withdrew” the Obama Administration interpretation, pulling the rug out from under the 4th Circuit’s decision.  The Supreme Court then canceled the argument and sent the case back to the 4th Circuit, where an argument has been scheduled for this fall on the question whether Title IX applies in the absence of such an executive branch interpretation.

Meanwhile, the Title VII issue has been percolating in many courts around the country. Here in New York, the 2nd Circuit Court of Appeals has had several recent panel decisions in which the judges have refused to allow sexual orientation discrimination claims because they are bound by earlier decisions of the court to reject them, although in some cases they have said that the gay plaintiff could maintain their Title VII case if they could show gender nonconforming behavior sufficient to evoke the stereotype theory. In one of these cases, the chief judge of the circuit wrote a concurring opinion, suggesting that it was time for the Circuit to reconsider the issue by the full court.  In another of these cases, Zarda v. Altitude Express, the court recently granted a petition for reconsideration by the full bench, appellants’ briefs and amicus briefs were filed late in June, and oral argument has been scheduled for September 26.  The EEOC as well as many LGBT rights and civil liberties organizations and the attorneys general of the three states in the circuit have filed amicus briefs, calling on the 2nd Circuit to follow the 7th Circuit’s lead on this issue.

This sets up an interesting dynamic between the 11th Circuit case, Evans, and the 2nd Circuit case, Zarda.  Lambda’s petition for certiorari (the technical term for seeking Supreme Court review) is due to be filed by 90 days after the denial of its rehearing petition by the 11th Circuit, which would put it early in October, shortly after the 2nd Circuit’s scheduled argument in Zarda.  After Lambda files its petition, the Respondent, Georgia Regional Hospital (perhaps, as a public hospital, represented by the state attorney general’s office), will have up to 30 days to file a response, but this is uncertain, since the hospital failed to send an attorney to argue against Evans’ appeal before the 11th Circuit panel.  Other interested parties who want the Supreme Court to take or reject this case may filed amicus briefs as well.  If Lambda uses all or virtually all of its 90 days to prepare and file its petition, the Supreme Court would most likely not announce whether it will take the case until late October or November.  If it takes the case, oral argument would most likely be held early in 2018, with an opinion expected by the end of the Court’s term in June.

That leaves the question whether the 2nd Circuit will move expeditiously to decide the Zarda case?  Legal observers generally believe that the 2nd Circuit is poised to change its position and follow the 7th Circuit in holding that sexual orientation claims can be litigated under Title VII, but the circuit judges might deem it prudent to hold up until the Supreme Court rules on the Evans petition and, if that petition is granted, the 2nd Circuit might decide to put off a ruling until after the Supreme Court rules.  In that case, there will be no change in the 2nd Circuit’s position until sometime in the spring of 2018, which would be bad news for litigants in the 2nd Circuit.  Indeed, some district judges in the Circuit are clearly champing at the bit to be able to decide sexual orientation discrimination claims under Title VII, and two veteran judges have bucked the circuit precedent recently, refusing to dismiss sexual orientation cases, arguing that the 2nd Circuit’s precedents are outmoded.  A few years ago the 2nd Circuit accepted the argument in a race discrimination case that an employer violated Title VII by discriminating against a person for engaging in a mixed-race relationship, and some judges see this as supporting the analogous argument that discriminating against somebody because they are attracted to a person of the same-sex is sex discrimination.

The 2nd Circuit has in the past moved to rule quickly on an LGBT issue in a somewhat similar situation.  In 2012, cases were moving up through the federal courts challenging the Defense of Marriage Act (DOMA), which had been held unconstitutional by several district courts.  A race to the Supreme Court was emerging between cases from Boston (1st Circuit), New York (2nd Circuit), and San Francisco (9th Circuit).  The Supreme Court received a petition to review the 1st Circuit case, where GLAD represented the plaintiffs.  The ACLU, whose case on behalf of Edith Windsor was pending before the 2nd Circuit, filed a petition with the Supreme Court seeking to leapfrog the district court and bring the issue directly up to the highest court.  After the ACLU filed its petition, the 2nd Circuit moved quickly to issue a decision, and the Supreme Court granted the petition.  Meanwhile, Lambda Legal, representing the plaintiff whose case was pending in the 9th Circuit, had filed its own petition asking the Supreme Court to grant review before the 9th Circuit decided that appeal.  It was all a bit messy, but ultimately the Court granted the ACLU’s petition and held the other petitions pending its ultimate decision, announced on June 26, 2013, declaring DOMA unconstitutional.  If the 2nd Circuit moves quickly, it might be able to turn out an opinion before the Supreme Court has announced whether it will review the Evans case, as it did in 2012 in the DOMA case (although that was just a panel decision, not a ruling by the full circuit bench.)  The timing might be just right for that.

Another concern, of course, is the composition of the Supreme Court bench when this issue is to be decided. At present, the five justices who made up the majority in the DOMA and marriage equality cases are still on the Court, but three of them, Justices Anthony Kennedy (who wrote those opinions), Ruth Bader Ginsburg, and Stephen Breyer, are the three oldest justices, and there have been rumors about Kennedy considering retirement.  Donald Trump’s first appointee to the Court, Neil Gorsuch, filling the seat previously occupied by arch-homophobe Antonin Scalia, immediately showed his own anti-LGBT colors with a disingenuous dissenting opinion issued on June 26 in a case from Arkansas involving birth certificates for the children of lesbian couples, and it seems likely that when or if Trump gets another appointment, he will appoint a person of similar views.  Kennedy, who turns 81 this month, has not made a retirement announcement and has hired a full roster of court clerks for the October 2017 Term, so it seems likely he intends to serve at least one more year.  There is no indication that Ginsburg, 84, or Breyer, 79 in August, plan to retire, but given the ages of all three justices, nothing is certain.

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.