Eleventh Circuit Holds that Title VII Does Not Cover a Claim for Sexual Orientation

On 10th March of this year, the United States Court of Appeals for the Eleventh Circuit held, in Evans v. Georgia Regional Hospital, that Title VII of the Civil Rights Act of 1964, as amended, does not prohibit sexual orientation discrimination in the workplace. Plaintiff Jameka Evans, who is a lesbian, had worked at Georgia Regional Hospital as a security officer. Ms. Evans presented a masculine appearance at work, she wore a man’s uniform and her hair was styled in a masculine manner. She contended that the hospital discriminated against her, based upon her sexual orientation, because she did not behave or present herself, in a “womanly manner.” Moreover, Ms. Evans has alleged that he was denied equal pay, harassed, physically assaulted, and subjected to retaliation after she made a complaint of discrimination to the employer’s human resources department.

The Eleventh Circuit held that “gender non-conformity,’ constitutes a distinct avenue for relief, under Title VII, thereby addressing Ms. Evans claim that she had chosen to present herself in a masculine context, which in turn, resulted in adverse employment action. Therefore, the Court recognized the validity of a sex stereotyping/gender discrimination claim. However, in contrast, the Eleventh Circuit held, consistent with prior precedent, that sexual orientation discrimination is not actionable under Title VII. With this analysis, it may be somewhat problematic to determine the demarcation line between sex stereotyping/gender discrimination and sexual orientation discrimination. The Eleventh Circuit holding conflicts with a recent en banc decision of the Seventh Circuit, making it very likely that the Supreme Court will undertake a review and make a final determination on this issue.

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Eleventh Circuit Reverses Lower Court Ruling on Sexual Harassment Claim, Affirms Lower Court Judgment on Retaliation Claim

In Furcron v. Mail Centers Plus, LLC, 2016 WL 7321211 (11th Cir., December 16, 2016), the employer provided administrative support for large companies; and in accordance with its business, Furcron was assigned to perform the duties of a mail clerk in Coca-Cola’s Atlanta office. In November of 2012, the alleged perpetrator of the harassment, Seligman, who suffered from Asperger’s syndrome, was transferred to work in the same office. Seligman proceeded to make offensive sexual gestures toward Furcron; he repeatedly stared at her and he invaded her personal space, most notably by looking down her shirt. When the harassment was in its early stages,Furcron took a photograph of Seligman, in the act of making offensive gestures of a sexual nature. Thereafter, Furcron made complaints about Seligman’s conduct to her supervisors, who in turn, reported the existence of these instances of harassment to the employer’s Manager of Business Operations.

After a holding a meeting with the Manager of Business Operations, management decided to initially suspend Furcron for showing the photograph to co-workers in the workplace. Furcron was terminated for showing the photograph to co-workers in the work place without Seligman’s permission. However, the Eleventh Circuit held that the nature and severity of the harassing conduct in the work place, was sufficient to constitute sexual harassment. In addition, the Court held that there was an insufficient showing of pretext on the retaliation claim, since the employer had a policy of prohibiting employees from exhibiting photographs of sexually offensive conduct; and hence, Furcron could not pursue her claim of retaliation below in the district court.

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Mark J. Berkowitz has been practicing labor and employment law for more than 20 years in the Fort Lauderdale area. He can advise you on non-compete agreements, employment contracts, and other employment related issues.

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