On Monday, December 11, 2017, the Supreme Court announced its decision not to review the case of Evans v. Georgia Regional Hospital, a case concerning whether discrimination on the basis of sexual orientation constitutes sex discrimination and is thereby prohibited under Title VII of the Civil Rights Act of 1964 (Title VII). This decision surprised many given that federal appellate courts are currently split on the issue.
In Evans, Jameka Evans, a former security officer for Georgia Regional Hospital, alleged that she suffered workplace discrimination and harassment on the basis of her sexual orientation while working at the hospital. Evans further alleged that the hospital eventually terminated her employment due to her sexual orientation. Following her termination, Evans sued the hospital alleging discrimination under Title VII.
The lower court held that Evans's claims were not actionable because "homosexuality is not a protected class under Title VII." Evans appealed this decision to the United States Court of Appeals for the Eleventh Circuit, and in March 2017, that court held, based on binding precedent of its past rulings, that it could not extend Title VII protection to discrimination based on sexual orientation. The Court stated: "Under our prior precedent rule, we are 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."
Shortly after the Eleventh Circuit rendered its decision in Evans, the United States Court of Appeals for the Seventh Circuit (the appellate court for the federal courts in Illinois, Indiana, and Wisconsin) addressed the same issue in Hively v. Ivy Tech. The Hively court ruled that discrimination based on sexual orientation violates Title VII. This decision marked the first time a federal court of appeals had extended Title VII protection to discrimination based on sexual orientation.
Currently, the United States Court of Appeals for the Second Circuit is considering this same issue in Zarda v. Altitude Express, a case out of New York in which an employee alleged that his company fired him for telling an employee that he was gay.
In light of the current split among federal appellate courts, and the growing number of cases on the issue, the Supreme Court's decision not to reconsider Evans v. Georgia Regional Hospital surprised many. Often, a "circuit split" constitutes good grounds for the high Court to consider an issue such as this. Many scholars feel that the Court may simply be biding its time and waiting to see the position taken by other federal courts before tackling the issue. Given the fairly strong opinion rendered by the Seventh Circuit in Hively, most were convinced the Supreme Court would review Evans v. Georgia Regional Hospital, thereby addressing the issue sooner rather than later. Either way, it seems that it is only a matter of time before the Supreme Court addresses this issue.