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Sharp Dissent Challenges Eleventh Circuit’s Recent Decision on Sexual Orientation Discrimination Under Title VII

July 27, 2018

A recent decision from the Eleventh Circuit has now caused a split in the circuit courts as to whether a claim for discrimination based upon sexual orientation can be asserted under Title VII. In a six-page dissent, Judge Robin Rosenbaum calls out her peers on their July 18, 2018, three-page decision to affirm a lower court’s ruling to dismiss a sexual orientation claim under Title VII in Bostock v. Clayton County Board of Commissioners. Bostack brought claims under Title VII against his employer alleging that he was wrongfully criticized and ultimately terminated because of his sexual orientation and identity. The lower court dismissed Bostack’s Title VII claims, and Bostock brought an appeal. On appeal, the Eleventh Circuit relied on a 39-year-old ruling to determine that Title VII’s prohibition against discrimination “because of sex” does not include discrimination based on sexual orientation.

In her dissent, Judge Rosenbaum makes clear her opinion that Title VII protects discrimination based on sexual orientation due to the failure of employees to conform to their employers’ views when it comes to whom they love, as supported by Price Waterhouse v. Hopkins. She explains that in 2011 approximately 8 million Americans identified as lesbian, gay, or bisexual, and that among those who identify, 25 percent report experiencing workplace discrimination because of their sexual preference. Judge Rosenbaum goes on to criticize her peers for failing to “deal with the issue” and provide a “reasoned and principled explanation” for their position. Bostack has already appealed the Eleventh Circuit’s decision.

In April 2017, the Seventh Circuit ruled that Title VII prohibits discrimination based on sexual orientation. Moreover, in February 2018, the Second Circuit also ruled that discrimination based on sexual orientation is covered under Title VII. The Seventh and Second Circuit’s decisions along with Judge Rosenbaum’s dissent will certainly bring this issue to light in the upcoming months. The United States Supreme Court declined to hear a similar case that arose out of the Eleventh Circuit and it remains to be seen whether the nation’s highest court will consider this issue.

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