The justices of the United States Supreme Court will meet later this week (on Friday, October 27, 2017) to discuss whether to hear a case that raises an important issue not yet addressed by the Court: whether federal law prohibits employers from discriminating against an individual on the basis of the individual’s sexual orientation. The case is Evans v. Georgia Regional Hospital.

Jameka Evans was employed by Georgia Regional Hospital as a security guard. She is gay, and presented herself at work in stereotypically “male” ways—for example, she wore a male uniform, she had a short haircut, and she wore male shoes. Ms. Evans claims her supervisors harassed her because she is gay and because she did not carry herself in a “traditional woman[ly] manner.” She has alleged that her employer intended to make her work unbearable; gave her less desirable work schedules; singled her out for rules infractions; and passed her over for a promotion that was given to a “less qualified individual” who is not gay.

Evans sued her employer in federal court alleging that her supervisors’ harassment created a hostile work environment. She claimed her employer violated Title VII of the Civil Rights Act of 1964.

Title VII prohibits employers from discriminating against an individual “because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Of relevance to Evans’s claim is Title VII’s prohibition against discrimination “because of … sex.” The question is whether the harassment endured by Evans due to her sexual orientation was discrimination because of her “sex.”

The Supreme Court has not yet had occasion to decide whether Title VII prohibits discrimination on the basis of sexual orientation. The Court, however, has said that Title VII’s ban on “sex” discrimination “mean[s] that gender must be irrelevant to employment decisions.” Price Waterhouse v. Hopkins, 490 U.S. 228, 240 (1989). Therefore, an employer illegally acts on the basis of gender when its decision is rooted in “sex stereotyping.” Id. at 250. The Court declared that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group. . . .” Id. at 251.

Some lower courts have decided that Title VII’s ban on “sex” discrimination is a ban on sexual orientation discrimination. These lower courts have relied on three rationales to support this conclusion.

First, by treating gay, lesbian, and bisexual persons differently because of their sexual orientation, an employer necessarily discriminates against them because of their sex. Take, for example, an employer who refuses to hire a man because he is attracted only to men. The same employer does not discriminate against women attracted only to men. Therefore, but for the man’s sex, the employer would have hired him.

Second, an employer who refuses to hire a person because the person is gay is insisting that the individual conform to a gender stereotype. Namely, a stereotype that women should only be attracted to men and men should only be attracted to women. Based on the Supreme Court’s decision in the Hopkins case, Title VII prohibits employment decisions based on gender stereotyping.

Third, Title VII prohibits what has been termed “associational discrimination.” It is established that an employer will violate Title VII if it discriminates against an employee because of the employee’s association with a person of another race. For example, it is unlawful to treat an employee in an interracial relationship differently from other employees married to persons of the same race. Thus, courts have analogized that it should also be unlawful to treat employees in same-sex relationships differently from employees in different-sex relationships.

Many courts, however, have decided that Title VII does not outlaw discrimination on the basis of sexual orientation. They have done so for varying reasons including a belief that Congress in 1964 did not intend for Title VII to prohibit sexual orientation discrimination. The trial court that decided Jameka Evans’s case followed these decisions and dismissed her claim.

Ms. Evans has now asked the Supreme Court to weigh in on the issue. Whether it will do so remains to be seen.

If you have questions or need advice concerning Title VII or discrimination claims, Astrachan Gunst Thomas can help. Please call Chris Lyon at 410-783-3547 ( or Elizabeth Harlan at 410-783-3528 (