11th Circuit Rules Title VII Does Not Prohibit Anti-Gay Discrimination in Deeply Confused Opinion

Judge William Pryor, who cast the deciding vote and wrote a bizarre concurrence.

Photo by Alabama Attorney General’s Office/Getty Images

On Friday, the U.S. Court of Appeals for the 11th Circuit ruled that Title VII of the Civil Rights Act of 1964 does not prohibit employers from discriminating against workers on the basis of their sexual orientation. Many federal courts—in addition to the Equal Employment Opportunity Commission—have reached the opposition conclusion, finding that Title VII’s ban on “sex discrimination” encompasses anti-gay discrimination. But by a 2–1 decision, a panel for the 11th Circuit bucked this trend, reading Title VII as narrowly as possible and, in the process, ignoring at least one critical Supreme Court precedent.

Friday’s decision, Evans v Georgia Regional Hospital, involved the case of Jameka Evans, a lesbian who presents as traditionally masculine. She sued her employer, alleging that she endured hostility and harassment in the workplace in violation of Title VII. Although that statute does not explicitly outlaw anti-LGBTQ discrimination, it does bar “sex discrimination,” including sex stereotyping. Evans argued that this prohibition bars employers from discriminating on the basis of gender presentation and sexual orientation.

The court first found that Evans had not presented sufficient evidence to state a claim based on her gender presentation. It then turned to the meat of her lawsuit: the theory that a ban on sex discrimination, including sex stereotyping, necessarily encompasses sexual-orientation discrimination. Oddly, the court quickly dismissed this theory by citing a circuit court precedent from 1979, Blum v. Gulf Oil, which stated, without analysis, that “discharge for homosexuality is not prohibited by Title VII.” That decision, the court insisted, controlled the outcome of this case, requiring a dismissal of Evans’ claims. (As a nice bonus, the court described sexual orientation as “sexual preference.”)

In an extraordinarily strange concurrence, the odious Judge William Pryor wrote that the Evans’ theory of Title VII “relies on false stereotypes of gay individuals” by disregarding their “diversity of experiences.” Pryor asserted that Title VII protects lesbians with masculine characteristics and gay men with feminine characteristics, but not feminine lesbians or masculine gay men, since they comply with sex stereotypes. He continued:

Some gay individuals adopt what various commentators have referred to as the gay “social identity” but experience a variety of sexual desires. Like some heterosexuals, some gay individuals may choose not to marry or date at all or may choose a celibate lifestyle. And other gay individuals choose to enter mixed-orientation marriages.

To support these claims, Pryor cited Brandon Ambrosino’s declaration that he chose to be gay in addition to an anti-gay amicus brief filed “Same-Sex Attracted Men and Their Wives.” Let’s gave Pryor the benefit of the doubt and assume he was trying to atone for once ruling that Title VII protects transgender employees—an uncharacteristic moment of cogency that may have cost him a Supreme Court seat.

That left it up to Judge Robin S. Rosenbaum to explain, in dissent, all the ways that Pryor and the majority went terribly wrong. As Rosenbaum succinctly explained:

Plain and simple, when a woman alleges, as Evans has, 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—specifically, that women should be sexually attracted to men only. 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. That is discrimination “because of … sex.”

Rosenbaum pointed out that the Supreme Court held in 1989’s Price Waterhouse v. Hopkins that sex discrimination encompasses sex stereotyping. This decision, she explained, clearly abrogated the 1979 decision relied upon by the majority. As the law stands today, employers are indisputably barred from mistreating workers on the basis of sex-based stereotypes. Anti-gay discrimination is motivated by precisely such a stereotype: the conviction that men and women must only be attracted to individuals of the opposite sex. Therefore, sexual orientation discrimination must fall under the scope of sex discrimination.

In a lengthy retort, Rosenbaum also took a satisfying swipe at Pryor’s “irrelevant journey through some of the different ways in which a gay person may express—or suppress—her sexual attraction.” And she rebutted the notion that because Title VII was not designed to protect gay people, it cannot be read to do so now. The Supreme Court unanimously rejected a similar argument in 1998’s Oncale v. Sundowner, when a discriminatory employer argued that the law wasn’t passed to stop male-on-male sexual harassment. This form of harassment, Justice Antonin Scalia wrote for the majority, was “assuredly not the principal evil Congress was concerned with when it enacted Title VII.” But, he noted:

Statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.

Given this principle, Rosenbaum wrote, “the mere fact that we may believe that Congress may not have specifically intended the meaning of what a statute actually says is not a basis for failing to apply the textual language.” She then took a second swipe at Pryor, this time for failing to respond to her evisceration of his concurrence. “Of course,” she wrote, Pryor “is free to ignore my analysis rather than respond to it, but that doesn’t make it go away.”

In the end, I suspect that Rosenbaum’s logic will carry the day. The 11th Circuit leans liberal, and its judges will now have an opportunity to vacate Friday’s panel decision and re-evaluate the case. They will likely do so—and decide that Title VII means what it says: All sex discrimination, including anti-gay abuse rooted in sex stereotypes, is forbidden in the American workplace. That conclusion is not some dramatic revision of Title VII. It is simply common sense.