Supreme Court Won’t Tackle Sexual Orientation Bias Issue

By Jay-Anne B. Casuga

The U.S. Supreme Court today declined to review whether lesbian, gay, and bisexual employees are protected from workplace discrimination under a federal civil rights law.

The justices won’t hear a case filed by Jameka Evans, a former hospital security guard who alleged she was harassed and fired because she’s a lesbian and doesn’t conform to gender norms. Earlier this month, 76 companies sided with Evans in a “friend of the court” brief. They included Apple, Facebook, Google, and Microsoft, as well as Tampa Bay Rays Baseball Ltd. and the Miami Heat pro basketball franchise.

The state of Georgia, which operates the hospital, declined to take a position on whether the case should go before the Supreme Court. The justices don’t provide their reasoning for denials, but Georgia’s lack of position could have motivated the court to wait for another case that’s fully briefed on both sides.

That other case potentially could be Zarda v. Altitude Express, Inc., which is pending before the full U.S. Court of Appeals for the Second Circuit. Zarda also deals with whether prohibitions against sex discrimination under Title VII of the 1964 Civil Rights Act also encompass sexual orientation bias.

Federal appeals courts, and even federal agencies, are split on the issue.

The Equal Employment Opportunity Commission, which enforces Title VII against private employers, has taken the position that Title VII does prohibit sexual orientation discrimination. However, the Justice Department, which enforces that same law against public employers, changed its previous position on the issue in July, saying the plain meaning of the word “sex” refers to only biological sex and that Congress didn’t intend to extend anti-discrimination protections based on sexual orientation.

Both agencies argued against each other on the sexual orientation issue in Zarda.

The case isEvans v. Ga. Reg’l Hosp., U.S., No. 17-370, certiorari denied 12/11/17.