11th Circuit Panel Parses Gender Stereotyping and Sexual Orientation Claims

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Last week, a panel of the Eleventh Circuit affirmed dismissal of a plaintiff’s Title VII sexual orientation claim, but vacated the district court’s order dismissing the employee’s gender non-conformity claim, drawing both an interesting concurring opinion and a no-holds-barred, partial dissent.  See Evans v. Georgia Regional Hosp., et al., No. 15-15234 (11th Cir. March 10, 2017). 
In Evans, the initially pro se plaintiff, a lesbian hospital security officer, claimed, among other things, that she was discriminated against for failing to conform to gender stereotypes and because of her sexual orientation.  A magistrate judge recommended dismissal of the claims because Title VII was not intended to cover discrimination against homosexuals, and further because the gender non-conformity claim was “just another way to claim discrimination based on sexual orientation.”  The district court conducted a de novo review of the record and adopted, without further comment, the magistrate’s recommendations.
 
On appeal, a panel of the Eleventh Circuit, relying on the Fifth Circuit’s decision in Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979), affirmed dismissal of the sexual orientation claim because, as the Blum Court found, discharge for homosexuality is not prohibited by Title VII.  Drawing a line between sexual orientation and sex stereotyping, the Court reversed and remanded the gender non-conformity claim, finding that a gender non-conformity claim is not just another way to claim discrimination based on sexual orientation.
 
In a concurring opinion, Judge Pryor agreed with the majority’s opinion, but drew a different line between discrimination based on behavior, and discrimination based on status.  According to Judge Pryor, the former is protected, but the latter is not, because Congress has not made sexual orientation a protected class. 
In a partial dissent, Judge Rosenbaum argued that when a woman alleges that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer’s image of what women should be, and it is “utter fiction” to suggest that she was not discriminated against for failing to comport with her employer’s stereotyped view of women. This, says Judge Rosenbaum, is discrimination “because of sex.” 
This decision highlights the ongoing struggles in the courts about the breadth of Title VII’s protections, and once again begs the question of which branch of government, if any, will provide a definitive answer.
 
 

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