Workplace bias against gays, lesbians may go to Supreme Court
WASHINGTON — The Supreme Court will be asked to decide next term if a federal law barring sex discrimination in the workplace extends to sexual orientation.
The potential for a high court showdown on the issue was raised Thursday when a federal appeals court in Atlanta confirmed its earlier decision against a woman fired from her job at a hospital because she is a lesbian.
The ruling from the conservative-leaning U.S. Court of Appeals for the 11th Circuit conflicts with an April decision from the Chicago-based 7th Circuit appeals court, which ruled 8-3 that sex discrimination laws protect gays and lesbians.
Lambda Legal, the gay rights group representing Georgia Regional Hospital security guard Jameka Evans, said it would appeal the latest ruling to the Supreme Court. A split between the two circuits increases the chance that the high court will decide the issue.
“We will continue to press the legally correct argument, recognized by so many other courts, that the Civil Rights Act protects all workers against sexual orientation discrimination, whether they are gender-conforming in particular ways or not,” said Greg Nevins, a Lambda Legal attorney.
A three-judge panel of the 11th Circuit originally ruled against Evans in March. At the time, Judge William Pryor — one of President Trump's candidates for a Supreme Court nomination — said the fight belonged in Congress, which "has not made sexual orientation a protected class."
On Thursday, the full appeals court refused to rehear the case — something the 7th Circuit agreed to do following a negative ruling from one of its three-judge panels. Judge Diane Wood — who President Barack Obama had considered for the Supreme Court in 2009 and 2010 — ruled in April that "it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex."
That ruling on behalf of Kimberly Hively, an instructor at Ivy Tech Community College in South Bend, Ind., made the 7th Circuit the highest federal court to protect LGBT people under the 1964 Civil Rights Act. Title VII of that law also bans discrimination on the basis of race, color, national origin and religion.
Gay rights groups want to get the issue to the Supreme Court before Justice Anthony Kennedy — the court's swing vote and the author of several landmark gay rights decisions — retires. Former law clerks for Kennedy, who turns 81 this month, have said he is actively considering retirement.