In her complaint, the employee alleged that she was discriminated against because she is a gay woman and identifies with the male gender.
A magistrate judge issued a report and recommendation holding that Title VII “was not intended to cover discrimination against homosexuals.” The district court adopted the magistrate’s report and recommendation.
The Eleventh Circuit affirmed the portion of the district court’s order dismissing the sexual orientation discrimination claim, citingto a 1979 Fifth Circuit decision as binding precedent that held “discharge for homosexuality is not prohibited by Title VII.”It also relied on a number of other circuit court decisions that held that sexual orientation discrimination is not actionable under Title VII.
The Eleventh Circuit vacated the portion of the district court’s order dismissing the gender nonconformity claim, stating that it was possible for the appellant to bring a separate, actionable claim under Title VII for this reason, although she had failed to plead sufficient facts to support such a claim. The case was remanded to allow the employee to replead her gender stereotyping claim.
Although the Eleventh Circuit has, at present, decided that Title VII does not recognize sexual orientation as a protected category, various state and local laws do establish sexual orientation as a protected criterion. Further, a rehearing en banc is still possible and could result in all of the judges of the Eleventh Circuit reexamining this issue.
Kelly M. Peña is an associate attorney in the Miami office of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Ms. Peña’s practice focuses primarily on employment litigation. Ms. Peña represents management in administrative proceedings as well as all phases of litigation. Prior to joining Ogletree Deakins, Ms. Peña was a litigation attorney with one of the largest national civil defense firms in the United States. She draws from considerable experience...