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Circuit Split: Expansion of Title VII Protections and Sexual Orientation as a Subset of a Protected Class

Circuit Split: Expansion Of Title VII Protections And Sexual Orientation As A Subset Of A Protected Class

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, color, religion, sex or national origin. Title VII has been supplemented via legislative action to also prohibit discrimination due to pregnancy (Pregnancy Discrimination Act of 1978), age (Age Discrimination in Employment Act) and disability (Americans with Disabilities Act of 1990). Now the question is whether sexual orientation should be considered a “protected class” and/or a subset of one of the aforementioned already-protected classes. At present, there is no determinative legislative guidance on this specific question, while two federal circuit courts have addressed this exact issue in the last 60 days and reached conflicting results.

No Cause of Action: Evans v. Georgia Regional Hospital

Jameka Evans was a security officer at Georgia Regional Hospital from August 1, 2012, to October 11, 2013. After leaving the hospital voluntarily, Ms. Evans maintained that she was denied equal pay, harassed and physically battered. She also alleged discrimination because she did not carry herself in a “traditional womanly manner,” she was homosexual and she identified with the male gender. Ultimately, Ms. Evans sued Georgia Regional (among other defendants) for such alleged discriminatory actions. The United States District Court for the Southern District of Georgia dismissed Ms. Evans’ Title VII claims, determining that then-established case law from all of the federal circuits “was not intended to cover discrimination against homosexuals.” Reasoning that a claim of discrimination based on gender, non-conformity was really “just another way to claim discrimination based on sexual orientation” regardless of the way it was characterized, her case was dismissed. Ms. Evans timely appealed the district court’s ruling and the U.S. Equal Employment Opportunity Commission (EEOC) filed an amicus curiae brief in support of her position. The EEOC took the position that Ms. Evans presented two cognizable causes of action for discrimination under Title VII based upon her sexual orientation and gender identity/non-conformity.

The Eleventh Circuit disagreed, relying upon its prior opinion holding that Title VII does not prohibit discharge for homosexuality. Evans v. Georgia Regional Hospital, No. 15-15234 (11th Cir. Mar. 10, 2017). The court also distinguished two decisions issued by the United States Supreme Court, holding that, while these decisions may allow a plaintiff to bring a claim under Title VII due to discrimination arising from gender non-conformity and sexual orientation, the Eleventh Circuit nonetheless is not permitted to deviate from precedent established in its prior rulings. At the time the opinion was issued, on March 10, 2017, the First, Second, Third, Fourth, Sixth, Seventh, Eighth, Ninth and Tenth Circuits had all similarly held that sexual orientation was not a prohibited basis for discriminatory acts under Title VII. Such uniformity among the circuit courts lasted less than a month after the Eleventh Circuit issued its opinion in Evans.

Cause of Action: Hively v. Ivy Tech Community College of Indiana

On April 4, 2017, the Seventh Circuit issued an opinion holding that a person who alleges they experienced employment discrimination based on their sexual orientation has put forth a claim of sex discrimination for Title VII purposes. Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. Apr. 4, 2017). Kimberly Hively was openly homosexual and began teaching as an adjunct professor at Ivy Tech Community College in 2000. From 2009 to 2014, Ms. Hively applied for six full-time positions, however she was not chosen for any of these opportunities. In July 2014, she was notified that her part-time contract was not being renewed, effectively terminating her employment with the College. Ms. Hively filed a complaint with the EEOC, followed by a complaint in the United States District Court for the Northern District of Indiana. The District Court promptly dismissed Ms. Hively’s complaint, relying on a line of previous Seventh Circuit holdings that stand for the proposition that sexual orientation is not a protected class under Title VII. An appeal to the Seventh Circuit followed. The court initially affirmed the lower court’s decision, reasoning that in enacting Title VII, “Congress had nothing more than the traditional notion of ‘sex’ in mind when it voted to outlaw sex discrimination. ” In essence, sexual orientation did not legally equate to “sex” as a protected class as specifically identified in Title VII. However, “[i]n light of the importance of the issue,” a majority of the judges voted to rehear the case en banc.

The task before the Seventh Circuit on rehearing was not to establish a new protected class, but rather one of statutory interpretation to determine whether sexual orientation should be considered a subset of the protected class of sex. In evaluating the legislative intent of Title VII and a number of Supreme Court cases addressing similar, though not controlling issues, the full panel of judges determined that “it would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation.'” Accordingly, the Seventh Circuit concluded that a person who alleges that they experienced employment discrimination based on their sexual orientation has put forth a case of sex discrimination for Title VII purposes.

What Do These Opinions Mean for You as an Employer?

As it currently stands, the law applicable to any employer will be determined by their physical location. Since there is currently a split among the federal circuits and this appears to be a rapidly changing area of the law, employers should stay up-to-date on opinions issued by their controlling courts. This may include an ultimate opinion by the Supreme Court, as well as legislative guidance that may be issued on the topic. Even those employers located in a geographic footprint encompassed by a federal circuit that does not recognize a cause of action for sexual orientation discrimination under Title VII should expect fierce opposition from not only the aggrieved employee, but also entities such as the EEOC, should a similar legal issue arise within their place of employment.

HAMILTON Cast Members to Join Coast Guard in Honoring Founder Alexander Hamilton





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HAMILTON Cast Members To Join Coast Guard In Honoring Founder Alexander Hamilton

As part of Fleet Week New York, the crew of the Coast Guard Cutter Hamilton[1] will honor Coast Guard founder, Alexander Hamilton[2], and the namesake of their vessel, with a wreath laying ceremony at his grave, on the grounds of Trinity Church, Friday. Also in attendance will be cast members of the esteemed Broadway musical, Hamilton[3]. The wreath presentation will be by the U.S. Coast Guard Silent Drill Team. The National Anthem will be preformed by Coast Guard Auxiliary Member, professional musician and bugler, Lou DiLeo. Invocation and benediction will be given by Mother Miles of Trinity Church. Alexander Hamilton[4]‘s humble beginnings began in New York City where he attended King’s College, now Columbia University. Hamilton[5] was General George Washington’s military aide de camp during the Revolutionary War and commanded the pivotal battalion charge at Yorktown forcing the British to surrender, effectively ending the war. In 1789, Hamilton[6] became Secretary of Treasury and crafted the effort to create the Revenue Cutter Service, which later became the modem day U.S. Coast Guard, much of which he accomplished while living in New York City.

Each of the Coast Guard’s National Security Cutters are “Legend Class” cutters honoring a person who was pivotal in making the Coast Guard the service it is today. U.S. Coast Guard Cuter Hamilton[7] (WMSL 753) is the fourth Legend Class cutter and the sixth Coast Guard Cutter to bear Alexander Hamilton[8]‘s name.

The cutter Hamilton[9] is a 418-foot National Security cutter homeported in Charleston, South Carolina. This week CGC Hamilton[10] made her inaugural voyage to New York City, as a part of Fleet Week festivities. USCGC Hamilton[11] will be moored at Pier 92 in Manhattan for Fleet Week, Wednesday 24 May to Wednesday, 31 May and is open for tours daily from 8 a.m. to 2 p.m.

HAMILTON Cast Members To Join Coast Guard In Honoring Founder Alexander Hamilton

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Two decades later, FBI renews call for info on missing 11-year-old

NEWARK[1] — It’s been more than 25 years[2] since Mark Himebaugh left his mother’s home in Middle Township, reportedly to watch firefighters at work on a nearby marsh blaze.

The Del-Haven resident, then 11, was last seen around 4 p.m. on Nov. 25, 1991 by a security guard at Cape May County Park South[3], who reported Himebaugh was walking with a girl. The only physical trace of him searchers ever discovered was his left sneaker, found on a beach[4] along the Delaware Bay. But FBI officials in Newark aren’t giving up hope of finding out what happened to him. On Thursday they renewed calls for information about Himebaugh in recognition of National Missing Children’s Day, which then-President Ronald Reagan first proclaimed on May 25, 1983.

A federal law passed in 1932 gives the top federal law enforcement agency jurisdiction over mysterious disappearance or kidnapping of a child of “tender age,” a category the FBI said in a statement typically encompasses those age 12 or younger.

The FBI wants help finding these missing people[5]

While there are numerous open cases[6] of missing children in the state, Himebaugh’s disappearance has long vexed authorities, who have described the case as a “non-family abduction” and in 2015 released a sketch[7] of a man they described as a person of interest in his disappearance.

Sketch of a man authorities described as a “person of interest” in the case. (Middle Township Police)

Authorities said the sketch resembled Thomas Butcavage, a convicted sex offender who first became associated with the case in 1993. Butcavage, who prison records show is currently incarcerated in Pennsylvania, has never been charged in connection with Himebaugh’s disappearance. In 2015, authorities also released a recording of a 2010 phone call to the National Center for Missing and Exploited Children from a man who said he was the “the son of the witness of the crime,” and indicated “Gilbert Patrick Marie” was involved in Himebaugh’s disappearance. NBC Philadelphia reported the call was placed from a pay phone[8] in Port Richmond area of Philadelphia.

Himebaugh would have celebrated his 37th birthday on Tuesday, according to the FBI.

Authorities have asked anyone with information about Himebaugh, or any missing child, to call the FBI’s Newark Division office at 973-792-3000, their local police department or 911.

Thomas Moriarty may be reached at


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