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On December 11, 2017, the United States Supreme Court denied a petition to review a lower court ruling that held Title VII of the Civil Rights Act of 1964 (Title VII) does not provide protection against harassment or discrimination based on a person’s sexual orientation. We previously wrote about that case, Evans v. Georgia Regional Hospital.

In Evans, the plaintiff sued her former employer, Georgia Regional Hospital, alleging she was discriminated against because of her sexual orientation and nonconformity with gender norms in violation of Title VII. The U.S. District Court dismissed Evans’s complaint, ruling Title VII does not cover sexual orientation discrimination. The case was appealed to the Eleventh Circuit Court of Appeals (covering Georgia, Alabama, and Florida), but in March 2017, a three-judge panel of that court upheld the district court ruling. The Evans opinion conflicted with an opinion on the same issue from a different appellate court. In April 2017, the Seventh Circuit Court of Appeals (covering Indiana, Illinois, and Wisconsin) ruled Title VII prohibits discrimination based on sexual orientation. We also discussed that case, Hively v. Ivy Tech Community College, in a previous article.

The Supreme Court’s refusal to review Evans leaves in place a split between appellate courts and fails to provide guidance for employers and employees on the scope of Title VII protections. Although this was a defeat for efforts to expand Title VII protections through the courts rather than through a change to the statute, the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing Title VII, has been accepting Charges of Discrimination alleging harassment or discrimination based on sexual orientation or transgender status since 2015. There has been no indication the EEOC will not continue that approach. It is also possible the Supreme Court will revisit the issue in the future.

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