Court: Discrimination against homosexual workers not prohibited

Associated Press

ATLANTA (March 13, 2017) — A federal appeals court in Atlanta has ruled that employers aren't prohibited from discriminating against employees because of sexual orientation.

Finally, a ruling based on law's intent

Charlie Butts (

Matt Barber, constitutional law expert and founder of, argues that the 11th Circuit's ruling is consistent with federal law and court rulings.

Barber, Matt (Liberty Counsel)"So-called 'sexual orientation' or 'gender identity' are not suspect minority class status," he says. "[The court ruled] that they do not represent immutable, unchangeable characteristics that are neutral qualities, and that the identifiable groups do not represent a powerless class."

Many thousands of people have changed and left the lifestyle – so it's not comparable to race, Barber adds.

"It's offensive that they would even attempt to take 'sexual orientation' and compare it to a neutral quality such as race – a category of people who cannot be discriminated against based upon their race or their sex, as Title IX and Title VII of the 1964 Civil Rights Act holds."

Barber says it is exciting to see the 11th Circuit issuing a decision based on the law and its intent – and on Supreme Court precedent – instead of on activist decisions that tend to reflect a judge's personal views rather than what the law actually says.

A three-judge panel of the 11th U.S. Circuit Court of Appeals on Friday ruled 2-1 that Title VII of the Civil Rights Act of 1964, which prohibits workplace discrimination based on a variety of factors, doesn't protect against workplace discrimination based on sexual orientation.

Jameka Evans in April 2015 sued her former employer, Georgia Regional Hospital in Savannah, alleging that she was discriminated against and effectively forced from her job as a security guard because she is a lesbian and didn't conform to gender norms.

Visiting Judge Jose E. Martinez wrote in the majority opinion that the court was bound by precedent set by a 1979 case that said Title VII doesn't prohibit "discharge for homosexuality." Other circuits have also found that sexual orientation is not a protected class under that law, Martinez wrote.

An 11th Circuit decision from 2011 said discrimination against a transgender employee because of gender non-conformity amounted to sex discrimination and was not allowed, and Evans' attorneys argued it should also protect gays and lesbians who claimed discrimination based on their sexual orientation.

Circuit Judge William Pryor, who was a party to that opinion, argued in a concurring opinion that the transgender case, which involved a legislative aide who was fired after telling her boss she planned to undergo a gender transition, was based on behavior rather than status.

"A gay individual may establish with enough factual evidence that she experienced sex discrimination because her behavior deviated from a gender stereotype held by an employer, but our review of that claim would rest on behavior alone," Pryor wrote.

Pryor also argued that it was up to Congress, not the courts, to declare sexual orientation a protected class.

Lambda Legal attorneys said they plan to ask the 11th Circuit to vacate the Evans ruling and have the full 11-judge court rehear the case.

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