Does Title VII Prohibit Discrimination Based on Sexual
Orientation: the Eleventh Circuit Says No, While the
Seventh Circuit Says Yes
By Honore N. Hishamunda April 2017
Since its inception, Titl e VII of the Civil Rights Act of 1964 (Title VII) has prohibited emplo yers from
discriminating against emp loyees and applicants beca use of their sex. In the past co uple of years, plaintiffs,
affinity groups including Lambda Legal, as well as the E qual Employment Opportunity Com mission (EEOC),
have argued that Title VII's prohibi tion against sex discrimination s hould be read to prohibit discrimination
based on sexual orientation.
Although the Supreme Court has not yet ruled on this is sue, two recent and contrast ing Court of Appeals'
opinions have. Specifically, in Evans v. Georgia Reg'l Hosp., 850 F.3d 1248 (11th Cir. 2017), the Eleventh
Circuit Court of Appeals - the federal court syste m covering Alabama, Florida an d Georgia - followed the
overwhelming majority of c ourts in holding that Title VII does not prohibit discrim ination based on sexual
orientation. A month afte r the Eleventh Circuit Court of A ppeals decided Evans v. Georgia Reg'l Hos p., the
Seventh Circuit Court of Appea ls - the federal court system cove ring Illinois, Indiana, and Wiscons in - was
presented with a similar case in Hively v. Ivy Tech Cmty. Coll. of Indiana, No. 15-1720, 2017 WL 1230393 (7th
Cir. Apr. 4, 2017), and became the fi rst circuit to hold that Title VII does prohibit discrimination based on
sexual orientation.
This article discusses the contras ting opinions, and the current state of law surrounding Title VII and sexual
orientation discrimination.
Evans v. Georgia Reg'l Hosp.
Jameka Evans, a lesbian, worked for Georgia Regional Hospital (GRS) as a security officer. During her time
with GRS, Ms. Evans wore a men's sec urity officer uniform and adopted a low c ut hairstyle. Ms. Evans
claimed that she was subjec ted to workplace mistreatment including, among other things, g eneral rudeness
from her coworkers, continued s cheduling issues and shift c hanges, and coworkers tampering with her
equipment which, she claime d, was designed to get her to quit. Eventual ly, Ms. Evans filed suit against GRS
claiming, among other things, that GRS violated Title VII's prohibition against sex discrimination by (a)
discriminating against her because of her sexual orientati on, and (b) discriminating agai nst her because her
outward appearance did not compo rt with traditional female charac teristics. The District Court dismis sed
her Title VII claim in its entirety after finding that Tit le VII's prohibition agains t sex discrimination neither
extends to sexual orientation, nor gender non-conformity.
The Court of Appeals affirmed the dis missal of Ms. Evans' Title VII claim to the ex tent it was based on her
sexual orientation. In doing so, the Court noted that they ha d reached a similar conclusion in Blum v. Gulf Oil
Corp., 597 F. 2d 936 (5th Cir. 197 9). Further, the Court found that it's decision in Blum has not been effected
