On March 10, 2017, the Court of Appeals for the Eleventh Circuit in Evans v. Georgia Regional Hospital held that sexual orientation discrimination is not actionable under Title VII.

In Evans, the plaintiff was a security officer at Georgia Regional Hospital.  During her employment, the plaintiff claimed she was discriminated on the basis of her sex and targeted for termination for failing to carry herself in a “traditional womanly manner.”  The plaintiff, although gay, “did not broadcast her sexuality,” though it was “evident that she identified with the male gender, because of how she presented herself” (e.g., she wore a male uniform, a male haircut and men’s shoes).  The plaintiff alleged she was discriminated against because of her sexual orientation and gender non-conformity, and retaliated against after she complained to her employer about the alleged discrimination.

While the appellate court found that discrimination based on gender non-conformity is actionable, it held that “binding precedent forecloses” an action based on sexual orientation discrimination under Title VII.  The appellate court reasoned that it was “bound to follow a binding precedent in this Circuit unless and until it is overruled by this court en banc or by the Supreme Court.”  The Court noted that a vast majority of the other circuits have held that sexual orientation discrimination is not actionable under Title VII, namely, the First, Second, Third, Fourth, Sixth, Seventh, Eighth, Ninth, and Tenth Circuits.

While sexual orientation claims are not actionable under Title VII, many state and local laws prohibit discrimination on the basis of sexual orientation.  In addition, the EEOC has taken the position that all complaints of discrimination on the basis of sexual orientation are sex discrimination claims under Title VII, at least for claims against the federal government.  See https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm.