Supreme Court Won’t Hear Case on Bias Against Gay Workers
Posted December 11, 2017 1:22 p.m. EST
WASHINGTON — The Supreme Court said Monday that it would not hear an appeal in a case that could have resolved whether a federal law prohibits employers from discriminating against gay and lesbian workers.
The case concerned Jameka Evans, who said a Georgia hospital discriminated against her because she is a lesbian. She sued under Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination based on sex.
In March, a divided three-judge panel of the 11th U.S. Circuit Court of Appeals, in Atlanta, ruled that Title VII’s reference to sex did not encompass discrimination based on sexual orientation.
The reach of Title VII has divided the federal appeals courts. In April, by an 8-3 vote, the 7th U.S. Circuit Court of Appeals, in Chicago, said Title VII covered gay people. “It would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation,'” Chief Judge Diane Wood wrote for the majority.
Such conflicts between appeals courts can prompt Supreme Court review. But the justices may have been troubled by an unusual aspect of Evans’ case. Lawyers for the hospital argued that it had not been properly served with legal papers, and they told the Supreme Court that they did not intend to appear to participate in the case.
There are other cases on the horizon. In September, the 2nd U.S. Circuit Court of Appeals, in New York, heard arguments on the issue in a case brought by a sky-diving instructor who said he was fired because he was gay.
Those arguments had a curious feature: Lawyers for the federal government appeared on both sides. One lawyer, representing the Equal Employment Opportunity Commission, said Title VII barred discrimination against gay people. Another, representing the Trump administration, took the opposite view.
The split within the government became public in July, when the Justice Department filed a brief telling the 2nd Circuit that the commission was “not speaking for the United States.”
The 2nd Circuit is expected to rule shortly, and an appeal in that case, Zarda v. Altitude Express, could reach the Supreme Court.
Gregory R. Nevins, a lawyer for Evans, said the Supreme Court’s decision not to hear her case, Evans v. Georgia Regional Hospital, No. 17-370, was disappointing.
“The Supreme Court is delaying the inevitable and leaving a split in the circuits that will cause confusion across the country,” said Nevins, director of Lambda Legal’s Employment Fairness Project. “But this was not a ‘no,’ but a ‘not yet.'”