Sexual Orientation: Status Or Conduct?

By Bill Wright

In Evans v. Georgia Regional Hosp. et al., No. 15-15234 (11th Cir. March 10, 2017), the panel of three Court of Appeal judges produced three opinions. Two of the judges argued amongst themselves over a point of legal analysis.  One judge maintained that Title VII does not protect people from discrimination based on their “status” as a homosexual, but from discrimination based “conduct” by which the person shows he or she varies from gender stereotypes.  The other judge maintained that, when an employer discriminates against a person for being sexually attracted to people of the same biological sex, that is necessarily discrimination because the person does not conform to a gender stereotype.

It is a distinction without a difference. To prevail on a gender stereotyping claim, the plaintiff has to show the decision-maker somehow knew the plaintiff failed to conform to the gender stereotype.  Once the plaintiff alleges a basis for the claim, the analytical point evaporates.  The battle yet to come for these two judges is over discrimination based on a false belief that the plaintiff varies from gender stereotypes.

The panel of judges reached a decision because the third judge, a District Court judge sitting by designation, argued that current precedent dictated the result. In the end, the case was remanded so the plaintiff could plead more facts about gender stereotyping. We should expect more philosophizing to come.