Supreme Court Won’t Decide If Civil Rights Law Protects Gay Workers. Yet.

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Kevin Daley Supreme Court correspondent
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The Supreme Court Monday declined to hear a landmark case asking the justices to declare that workplace discrimination against LGBT persons is unlawful.

The Court declined to hear the challenge despite growing disagreement in the federal courts as to whether existing anti-discrimination law protects LGBT workers.

The case was brought by Jameka Evans, who claims she was driven from her job at Georgia Regional Hospital by steady anti-gay harassment. Evans is a lesbian who does not conform to gender norms. She sued the hospital on leaving the post, claiming the 1964 Civil Rights Act — which prohibits sex-based discrimination — protects LGBT employees from workplace harassment. The 11th U.S. Circuit Court of Appeals affirmed a trial court ruling dismissing her case in July, prompting an appeal to the high court.

“By declining to hear this case, the Supreme Court is delaying the inevitable and leaving a split in the circuits that will cause confusion across the country,” said Greg Nevins, director of the employment fairness project at Lambda Legal. “But this was not a ‘no’ but a ‘not yet.'”

The 7th Circuit heard a similar case in November 2016 concerning Kimberly Hively, an adjunct professor at a community college who claims she was precluded from joining the full-time faculty because she is a lesbian. The 7th Circuit sided with Hively eight to three, finding existing anti-discrimination law applies to LGBT workers. Both Evans and Hively are represented by Lambda Legal, a pro-LGBT rights public interest law group.

In both cases, Lambda Legal argues that discriminating against someone in the workplace because of sexual orientation has always been unlawful under the 1964 Civil Rights Act. As they see it, discrimination against LGBT individuals is necessarily rooted in gender norms and stereotypes, which qualifies as the sort of sex-based discrimination the law forbids. The Equal Employment Opportunity Commission (EEOC) has endorsed this reading of the law.

A similar case is currently pending before the 2nd Circuit. The Supreme Court often reviews legal questions on which multiple circuit courts disagree. Given the growing disagreement among the appeals courts as to the reach of the Civil Rights Act, it seems likely the justices will eventually decide this question.

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