Jonathan Ernst / Reuters
Advocates are hoping the Supreme Court is ready to consider and rule on whether federal civil rights laws protect gay, lesbian, and bisexual people from being discriminated against on the job.
Jameka Evans, a lesbian who worked as a security guard at Georgia Regional Hospital, has sued over her treatment there — and asked the courts to allow her to bring her claim under Title VII of the Civil Rights Act of 1964. The law, among other things, bans sex discrimination in the workplace, and Evans says that sex discrimination, by definition, includes discrimination based on sexual orientation.
She is not alone in this view. Multiple federal appeals courts have either ruled on the issue or will hear arguments on the question out of cases raising the question in recent years.
The US Court of Appeals for the Seventh Circuit, sitting as a full court (called en banc), ruled in April that Title VII's sex discrimination ban includes sexual orientation discrimination claims. The Equal Employment Opportunity Commission announced its view in support of this position in 2015 and has argued that position in courts since then.
The Second Circuit, also en banc, is due to hold arguments in a case raising a similar question later this month.
The Eleventh Circuit, where Evans's case was heard, ruled against her earlier this year in a three-judge panel decision that cited a 1979 ruling on the question from the circuit. The judges wrote that the earlier decision, which held that Title VII's sex discrimination ban does not include sexual orientation, “is binding precedent that has not been overruled by a clearly contrary opinion of the Supreme Court or of this Court sitting en banc.”
In the petition seeking Supreme Court review, Evans' lawyers — led by Gregory Nevins at Lambda Legal, an LGBT advocacy group, and joined by Jeffrey Fisher and Pamela Karlan from Stanford Law School and other Lambda Legal lawyers — argue that the high court should take the case primarily because lower courts and federal agencies are divided on the question and the issue is “exceptionally important.”
Additionally, they argue that the case is an “ideal vehicle” for the Supreme Court to use to answer the question definitively and, bluntly, that “[t]he Eleventh Circuit's decision is wrong.”
The case comes to the justices less than a month before they are to return from their summer recess and less than eight months into the Trump presidency — two facts likely weighing heavily on the lawyers' minds.
Just hours after the filing, the Trump administration would file a brief in another case in which the Justice Department sided with a baker arguing that the First Amendment protects him from having to, under Colorado civil rights laws, bake a cake for a same-sex couple's wedding.
The filing also comes as many liberal lawyers remain concerned about whether and when Justice Anthony Kennedy, at 81, might retire from the court. Kennedy is the author of the four major gay rights rulings from the Supreme Court over the past 21 years — all of which, in other words, came long after that 1979 ruling that sexual orientation discrimination isn't covered by sex discrimination bans.