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Eleventh Circuit Again Rejects Claim That Title VII Prohibits Discrimination On The Basis Of Sexual Orientation

7/23/18

By: Bill Buechner
In Bostock v. Clayton Co. Bd of Comm’rs, 723 F. App’x 964 (11^th Cir. 2018), the Eleventh Circuit again held that Title VII does not prohibit discrimination on the basis of sexual orientation.   In doing so, the panel relied on prior circuit precedent in Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11^th Cir.), cert. denied, 138 S.Ct.  557 (2017) and Blum v. Gulf Oil Corp., 597 F.2d 936 (5^th Cir. 1979).    Jack Hancock and Bill Buechner are representing the County in the case.
Last week, the Eleventh Circuit issued an order denying a request from a member of the Court for rehearing en banc.  Bostock v. Clayton Co. Bd. of Commissioners, 2018 U.S. App. LEXIS 19835,  2018 WL 3455013 (11^th Cir. July 18, 2018).   The order was notable because it was accompanied by a dissent by two circuit judges sharply criticizing their colleagues for not agreeing to rehear the case en banc.
The plaintiff in Bostock had already filed a petition for writ of certiorari with the United States Supreme Court, and the County will be filing a response to that petition in the next few weeks.   The employer in Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc) also has filed a petition for writ of certiorari with the Supreme Court seeking review of the Second Circuit’s ruling that Title VII does prohibit discrimination on the basis of sexual orientation.
We will report on the outcome of these pending petitions for writ of certiorari with the Supreme Court.
If you have any questions or would like more information, please contact Bill Buechner at bbuechner@fmglaw.com.