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The Supreme Court Could Soon Protect Gay Workers from Discrimination

It's hard to overstate the importance of 'Evans v. Georgia Regional Hospital,' a case that could establish federal-level employment protection on the basis of sexuality.

by Harron Walker
Sep 15 2017, 7:12pm

Jameka Evans. Photo courtesy Lambda Legal

Jameka Evans began working as a security guard at Georgia Regional Hospital in 2012, and the trouble, she alleged, started soon after that. In court complaints, she said that her supervisor, Charles Moss, didn't like the fact that she's a lesbian, nor how she wore men's clothes and cropped her hair in a masculine style. This, she said, led to mistreatment on the job, like the promotion of an unqualified coworker over her. Other co-workers felt empowered enough to join in, one of whom allegedly slammed doors in her face. (Georgia Regional Hospital did not respond to a request for comment by time of publication.)

"During my term of employment, I endured harassment and denial of equal pay and retaliation simply because of my sexual orientation and lifestyle," Evans said at a press conference last Thursday, as reported by Project Q Atlanta. "There is where my fight began, and hopefully it will end at the Supreme Court."

The press conference was where Evans, the plantiff in Evans v. Georgia Regional Hospital, announced alongside her lawyers that she had asked the Supreme Court to hear her case. Stuck in a hostile work environment with no help from human resources, Evans left her job at the Atlanta-area hospital in 2013; Evans sued her former employer two years later, citing a violation of her rights under Title VII of the Civil Rights Act, which prohibits employment discrimination on the basis of race, sex, and religion, among other categories. She's been navigating courtrooms ever since. First, a district court dismissed her claim; then the 11th Circuit denied her appeal in what Slate's Mark Joseph Stern called a "deeply confused" opinion. Now, Evans and her legal team are taking their fight to the country's highest court.

Should the justices rule in her favor, it will be a major decision, and all Americans—but particularly the most visibly queer Americans, those who need it most—will finally be protected from workplace discrimination on account of their sexual orientation. Should the court rule against her, the US will remain a place where, despite recent, highly visible measures of progress for LGBTQ rights, a black lesbian woman can be marginalized in the workplace and have no legal recourse in over half of the United States.

Evans's argument rests on the idea that Title VII, through use of the word "sex," also protects employees from discrimination on the basis of sexual orientation. The Equal Employment Opportunity Commission (EEOC) backs this position, set forth during Baldwin v. Dep't of Transportation in 2015. Despite the EEOC's decision, the 11th Circuit interpreted the word "sex" as pertained to Evans's case extremely narrowly. Some might even say anachronistically, considering the Seventh Circuit ruled that discrimination against one's sexual orientation is a form of sex discrimination in Hively v. Ivy Tech Community College earlier this year—a case in which a woman was denied full-time employment and later terminated because she is a lesbian. Evans's lawyers are hoping the Supreme Court can resolve the conflict between the rulings by the Seventh and 11th Circuit courts.

When it comes to sexual orientation, Stanford Law School professor and anti-discrimination law scholar Richard Thompson Ford said that an affirmative Supreme Court ruling "would mean that everyone in all 50 states would be entitled to equal treatment in employment without regard to their sexual orientation."

Ford thinks that it's likely the Supreme Court will hear Evans's case, citing the Seventh Circuit's ruling in Hively v. Ivy earlier this year and the EEOC holding on Title VII and sexual orientation from 2015. He also said that "there is a good chance the Court will hold that Title VII prohibits sexual orientation discrimination"—that is, decide in Evans's favor—due to Hively and other precedent-setting cases.


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There is also Zarda v. Altitude Express to consider, an ongoing case involving a since-deceased gay man and an employer that allegedly didn't go far enough to protect him from anti-gay bias on the job. Attorney Gregory Antollino appealed Zarda in January of this year, and the Second Circuit granted an en banc review this May. Two months later, the Jeff Sessions–led Department of Justice filed a brief in the case arguing that Title VII does not extend to sexual orientation, and that "any efforts to amend Title VII's scope should be directed to Congress rather than the courts." Still, Ford feels confident that the Supreme Court will side with Evans. "This is clearly the way the wind is blowing," he said.

The DOJ's suggestion that LGBTQ workplace protections should be left to Congress is particularly frustrating, as politicians have tried to affect this kind of change for decades—the most recent example of which, the Equality Act, died in committee in 2015 before being reintroduced earlier this year. Without a proper federal law, the only kind of codified workplace protections that lesbian, gay, bisexual, and queer people have are found at the state level. At present, only 22 states plus Washington, DC, prohibit such discrimination, according to the Movement Advancement Project (MAP), an LGBTQ-focused law and policy think tank. This leaves about half of the country's queer and trans population unprotected.

It's impossible to say whether a Supreme Court precedent like the one she's seeking would have saved her, if a court does find her allegations true. And it wouldn't account for the anti-LGBTQ bias Evans would likely experience in the courtroom, which disproportionately affects queer people of color when compared to their white counterparts, nor would it account for the harassment queer people face even in states where such anti-discrimination laws exist. But the ruling would have at least given her some sort of legal recourse to find justice, which is better than the options she had at the time: stay and endure the harassment she said she faced, or try to find comfort in unemployment.

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