- The 11th U.S. Circuit Court of Appeals has rejected a request that the full court reconsider a ruling in which a three-judge panel held that Title VII of the Civil Rights Act of 1964 does not prohibit discrimination based on sexual orientation (Bostock v. Clayton County Board of Commissioners, No. 17-13801, rehearing denied, (11th Cir., July 18, 2018)).
- The case began when Gerald Bostock sued his employer, Clayton County, Georgia, claiming that it discriminated against him based on his sexual orientation, in violation of Title VII. A federal district court dismissed the case, explaining that a case decided in 1979, which held that Title VII does not cover sexual orientation, controlled the outcome. A three-judge panel affirmed.
- In a scathing dissent accompanying the denial, Judge Robin Rosenbaum declared the issue "indisputably en-banc-worthy." Pointing out that two other circuits had granted rehearings en banc on the issue, Rosenbaum said the 11th Circuit is clinging to a 39-year-old precedent. Rosenbaum said she could not "explain why a majority of our Court is content to rely on the precedential equivalent of an Edsel with a missing engine, when it comes to an issue that affects so many people."
As Rosenbaum pointed out, both the 2nd and 7th Circuits have addressed the issue with the full courts, and both ruled in favor of coverage. Those findings created a circuit split, with the 11th taking the opposition position.
The U.S. Supreme Court often takes up cases to resolve a split in the circuits, but the High Court declined to address the issue a few months ago when it denied review to a different 11th Circuit decision. It has another chance to do now, however, as the employer at the center of the 2nd Circuit case has asked it to review that court's opinion.
Employers should be aware that the U.S. Equal Employment Opportunity Commission remains a steadfast defender of the position that Title VII does protect sexual orientation and gender identity despite opposition from the Trump Administration. In addition, many state and local laws expressly forbid LGBT discrimination. With that in mind, attorneys have advised businesses to refrain from discriminating against applicants and employees based on sexual orientation.