17 States and DC Join Lambda Legal Supreme Court Push to End LGBT Employment Discrimination

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October 12, 2017

Today the attorneys general of 17 states and the District of Columbia joined Lambda Legal to urge the U.S. Supreme Court to decide once and for all whether Title VII of the Civil Rights Act protects LGBT individuals from discrimination on the job.

The friend-of-the-court brief filed by New York Attorney General Eric T. Schneiderman and joined by the attorneys general of California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maryland, Massachusetts, Minnesota, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington, as well as the District of Columbia argues that interpreting Title VII to protect employees for sexual orientation discrimination is critical for gay, lesbian, and bisexual people from states without explicit protections from sexual orientation discrimination and for individuals not covered by state law in states with such protections.

The brief is one of four friend-of-the-court briefs submitted in support of Lambda Legal's petition asking the Court to hear the case of Jameka Evans, a Savannah security guard who was harassed at work and forced from her job because she is a lesbian. The petition seeks a nationwide ruling that sexual orientation discrimination violates Title VII’s ban on sex discrimination.

“We are grateful that so many attorneys general have joined the mighty chorus calling for the Supreme Court to review Jameka’s case and protect LGBT people from discrimination at work,” said Greg Nevins, Employment Fairness Project Director for Lambda Legal.

“Just like the patchwork of state laws concerning marriage equality before the Supreme Court’s historic decision in Obergefell, having rights as a gay employee in the state where you live can still leave you unprotected if your job is right across the boundary in a state where there are no protections. Title VII plays a crucial complementary role by covering individuals not subject to a state’s laws.”

“It’s unacceptable for an employee to be discriminated against based on sexual orientation – and it’s high time that’s clear across the country,” said Attorney General Schneiderman. “Who a person loves has nothing to do with their ability to do their job. We’ll continue to make clear that discrimination has no place here or anywhere.”

“The unprecedented level of support from these 18 state attorneys general for the proposition that federal law already protects the right of LGBT people to be from employment discrimination demonstrates that the time is now for the Supreme Court to settle this question. Even as the Trump Administration works overtime to attack the rights and equal dignity of LGBT people in this country, we are grateful for the record number of states, businesses, scholars and advocacy organizations that have said that employment discrimination is bad for business and un-American,” said Lambda Legal Staff Attorney Omar Gonzalez-Pagan.

Several federal courts have affirmed the argument that Title VII, when properly understood, protects LGBT employees. Most notably, the full Seventh Circuit overruled four of its precedents and ruled in April that Lambda Legal client Kimberly Hively could proceed under the Civil Rights Act with her claim that Indiana-based Ivy Tech Community College discriminated against her because she is a lesbian. (More on that case here.)

Last month, Lambda Legal argued before the full Second Circuit, which is reexamining two of its precedents in Zarda v. Altitude Express, the case of a New York skydiving instructor who was fired from his job because he was gay.

In April of 2015, Evans filed a lawsuit in U.S. District Court for the Southern District of Georgia against her former employer, Georgia Regional Hospital, arguing that the hospital violated Title VII of the Civil Rights Act by discriminating against her because of her sexual orientation and her nonconformity with gender norms of appearance and demeanor. The district court dismissed the case. 

In January of last year, Lambda Legal filed an appeal on Evans’ behalf, arguing that she must have her day in court, citing rulings by several federal district courts and the Equal Employment Opportunity Commission (EEOC) finding that sexual orientation discrimination is a form of sex discrimination and thereby a prohibited employment practice.

On March 10, 2017, a three-judge panel of the Eleventh Circuit held that it was compelled by a 1979 ruling to reject Evans’ sexual orientation discrimination claim. Lambda Legal asked the whole court to rehear the case so that it could reexamine the 1979 precedent, but unlike the Seventh Circuit and Second Circuit, the full Eleventh Circuit Court of Appeals declined to rehear the case On September 7, citing a clear conflict among the circuits, Lambda Legal filed a petition asking the U.S. Supreme Court to review the case.

Evans is part of Lambda Legal’s efforts to establish and enforce employment discrimination protection for all LGBT people and everyone living with HIV. In addition to the sexual orientation cases, these efforts include an historic win for transgender workplace rights in Glenn v. Brumby and the current lawsuit Karnoski v. Trump challenging the ban on transgender troops.

Lambda Legal launched Out at Work, a campaign to support Jameka Evans in her pursuit of justice, to bring awareness to LGBT people everywhere of their Title VII rights, and to assert that all people have the right to a job with dignity, free from repercussions for who they are or whom they love.

Lambda Legal Employment Fairness Project Director Greg Nevins is the lead attorney for both the Hively and Evans cases.  The attorneys on the Evans certiorari petition are Nevins, Jon Davidson, Susan Sommer, Omar Gonzalez-Pagan, Karen Loewy and Professors Pamela S. Karlan and Jeffrey L. Fisher of the Stanford Law School Supreme Court Litigation Clinic.

The case is Evans v. Georgia Regional Hospital.

More information about Lambda Legal’s work on employment protections is available here.