A recent U.S. Court of Appeals decision has cast a shadow over the sexual orientation discrimination claims of gay and lesbian employees nationwide. Find out what the case does and doesn’t say about same-sex gender stereotype discrimination in the workplace.

In this blog post I will review the U.S. Court of Appeals decision in Evans vs. Georgia Regional Hospital. I will explain the different rulings contained within the opinion, and the impact of the decision on LGBT employees across the country.

11th Circuit Court Says No to Sexual Orientation Discrimination Per Se

The 11th Circuit made waves in the news recently. Reporters latched on to a portion of its opinion in Evans vs. Georgia Regional Hospital saying the court ruled that discrimination against gay workers was not illegal. But that’s not exactly what the court said. Instead, the court held that there is no independent cause of action (basis for a lawsuit) if a person is discriminated against solely because of his or her sexual orientation.

The case arose from a complaint filed with the Equal Employment Opportunity Commission by Jameka Evans against her employer, Georgia Regional Hospital. Evans worked as a security guard at the hospital. She filed a lawsuit on her own, without an attorney, claiming that she faced discrimination at work based on her sexual orientation and gender non-conformity. She said by wearing a male uniform and a short haircut her sexual orientation became evident. That was the basis for her receiving less desirable shifts and being targeted for termination. She also alleged that a less qualified coworker was promoted over her. When she filed a human resources complaint, she was retaliated against by a supervisor who created a hostile work environment.

The Court of Appeals said it could not find a basis for Evans’s sexual orientation discrimination claim based on status. It was prohibited by doing so by a 1979 circuit court opinion which stated “[d]ischarge for homosexuality is not prohibited by Title VII.” The court interpreted this to mean that discrimination based purely on a person’s LGBT status was not illegal under the federal Civil Rights Act.

Gender Non-Conformity Discrimination Is Still Illegal

Under the Evans decision, a person may not file an employment discrimination claim based simply on the fact that his or her employer was prejudiced against homosexual employees as a class. But that doesn’t mean that gay and lesbian workers aren’t protected. The court very clearly found that a lawsuit based on gender non-conformity is allowed. It said:

We hold that the lower court erred because a gender non-conformity claim is not ‘just another way to claim discrimination based on sexual orientation,’ but instead, constitutes a separate, distinct avenue for relief under Title VII.

So while Evans may not have had a claim for bias employment decisions based on the fact that she was a lesbian, she may have been able to bring that same lawsuit based on the way that status manifested. If her behavior fell outside of traditional gender norms (including choosing to wear pants or cut her hair short), and that behavior resulted in discriminatory actions against her, then Evans could still file suit under the gender discrimination protections in Title VII.

How Evans v Georgia Regional Hospital Affects LGBT Workers Nationwide

A Circuit Court opinion like Evans can affect employees well outside of its region. Only lower courts in Alabama, Georgia, and Florida are required follow to the 11th Circuit Court’s ruling. But courts nationwide are allowed to use this decision as a basis for their own legal decisions. Judges across the country may, if they choose, rely on the reasoning in Evans to reach decisions in other LGBT discrimination cases.

At the same time, the 7th Circuit Court of Appeals has just decided a sexual orientation discrimination case in favor of the employee. The 7th Circuit ruled that discrimination based on a person’s sexual orientation is gender discrimination per se (the claim Evans rejected). This could pave the way to a United States Supreme Court decision on the matter which could clearly establish or reject a gay or lesbian employee’s rights under Title VII.

How an Employment Discrimination Attorney Helps

Jameka Evans did not have an attorney; she filed her lawsuit herself. And that likely had a strong affect on her case. The Court of Appeals made clear that she may have had a stronger claim if her complaint had included more details about the employer’s discriminatory practices. In fact, the court directed that she be allowed to amend her complaint as the case progressed, to more clearly lay out her claims for behavior-based gender discrimination.

At Eisenberg & Baum, LLP, we don’t want anyone’s discrimination claim to fail because it was poorly written or presented. We understand that our clients may not always know how to present themselves before the EEOC magistrates or in court. That’s why we take the time to help our clients understand the process and learn the strengths and weaknesses of their cases. If you believe you have been subject to sexual orientation discrimination based on sexual stereotypes, contact Eisenberg & Baum today. Our employment discrimination attorneys will help you understand the law and present your best case.