Nicole Prysby, Senior Attorney, National Legal Research Group
In interpreting the coverage of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, appellate courts have held that the prohibition against discrimination based on sex does not encompass discrimination based on sexual orientation. E.g., Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000); Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979). In December 2012, however, the Equal Employment Opportunity Commission ("EEOC") took the opposite position in a Strategic Enforcement Plan that prioritized enforcement of discrimination against lesbian, gay, bisexual, and transgender employees under the sex discrimination provisions of Title VII. Since that time, the EEOC has filed a number of lawsuits alleging discrimination against gay and lesbian employees and has consistently maintained that Title VII's prohibition of discrimination based on sex protects employees against discrimination based on sexual orientation. See, e.g., Complainant v. Anthony Foxx, Secretary, Dep’t of Transp. (Fed. Aviation Admin.), Agency, EEOC DOC 0120133080, 2015 WL 4397641 (July 15, 2016).
In April 2017, the Second Circuit, relying on Simonton, held that Title VII does not prohibit discrimination based on sexual orientation. Zarda v. Altitude Express, 855 F.3d 76 (2d Cir. 2017). The court also noted that a separate panel had held that Simonton could only be overturned by a Second Circuit en banc decision.
Similarly, the Eleventh Circuit held in March 2017 that a lesbian employee was not protected under Title VII against discrimination based on her sexual orientation. Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017). In the Evans decision, the court cited a 1979 case that held that discharge for homosexuality is not protected by Title VII, Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979) (adopted as binding precedent for the Eleventh Circuit in Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), and found that it was bound to follow the ruling in Blum unless that decision is overruled by an en banc holding of the Eleventh Circuit.