The Supreme Court Monday declined to consider whether harassment and discrimination on the basis of sexual orientation should be treated the same way as sex-based discrimination under federal law. Jameka Evans, a Savannah hospital employee, appealed to the Supreme Court after losing her case in the Eleventh Circuit Court of Appeals, which hears federal legal appeals in Alabama, Florida and Georgia. Evans’s hope was that the Supreme Court would follow the path the Seventh Circuit—Illinois, Indiana and Wisconsin—paved in April.
Title VII of the Civil Rights Act of 1964 makes it unlawful for employers subject to the Act to discriminate on the basis of a person’s “race, color, religion, sex, or national origin … .” 42 U.S.C. § 2000e-2(a). For many years, the courts of appeals of this country understood the prohibition against sex discrimination to exclude discrimination on the basis of a person’s sexual orientation. The Supreme Court, however, has never spoken to that question. In this case, we have been asked to take a fresh look at our position in light of developments at the Supreme Court extending over two decades. We have done so, and we conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination.
Only in Seventh Circuit states can lesbian, gay, and bisexual employees be sure that they can bring a federal anti-discrimination case. That victory came only after the full court—now composed of 11 judges—met to review their less progressive precedent. Once a circuit’s made up its mind—even in a single case with just three judges making the call—it takes either a rehearing en banc, a full convening of judges a la the Seventh Circuit or clear direction from the Supreme Court to change the rules.
The question is, when will the Supreme Court face this Title VII question? The Seventh Circuit defendant, a community college accused of blocking a part-time lesbian instructor from full-time positions, did not appeal to the Supreme Court. Now, the court has refused to hear the Eleventh Circuit appeal, officially denying LGBTQ people federal anti-discrimination protections in employment across three states. It’s possible the justices did not feel the issue was ripe to hear. Often it’s only after multiple lower courts have taken a shot at a legal dilemma—reaching different results—that the Supreme Court steps in. It could also be that the case at hand made a poor vehicle given its procedural snags.
Next up, potentially, is the case of a now-deceased skydiver who alleged his employer fired him on the basis of his sexual orientation—that’s Zarda v. Altitude Express. The Second Circuit—Connecticut, New York and Vermont—heard arguments en banc in Manhattan this September. What’s slightly different about this Title VII battle? The Trump Department of Justice has jumped in to argue against extending protections on the basis of sexual orientation—not just reversing course but taking on another federal agency, the Equal Employment Opportunity Office. If this is the case that makes it to the Supreme Court, expect a remarkable political as well as judicial showdown.