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Court Says No Discrimination Protection for Gays, Lesbians in the Workplace -- Again

By William Vogeler, Esq. on July 25, 2018 | Last updated on March 21, 2019

It is a rare thing when appellate courts decide to reconsider cases en banc.

That was one of the sticking points in Bostock v. Clayton County Board of Commissioners, out of the U.S. Eleventh Circuit Court of Appeals. The appeals court didn't take the case, prompting the dissenters to say the majority was dodging a momentous issue.

Two justices, out of twelve, said gay and lesbian rights in the workplace were important enough to compel the Second and Seventh Circuits to act en banc. The Eleventh Circuit, however, apparently not.

Turned Down for Bostock

The majority turned down the plaintiffs' request for a rehearing with one sentence. In a word, "no."

Gerald Bostock, a gay man who said he was fired based on his sexual orientation, had appealed after his case was dismissed. A trial judge dismissed his case based on an earlier decision by the Eleventh Circuit.

In Evans v. Georgia Regional Hospital, the appeals court said the Civil Rights Act does not protect gay and lesbian workers from discrimination based on their sexual orientation.

But Bostock didn't put all his eggs in one basket. While waiting for the Eleventh Circuit, he filed a petition with the U.S. Supreme Court.

Eggs in One Basket

Meanwhile, the Second and Seventh Circuits have ruled that Title VII does protect against discrimination based on sexual orientation. The U.S. Supreme Court may resolve the conflict.

Judge Julie Rosenbaum, who dissented in Bostock, hopes so. She said that about eight million Americans identify as gay, lesbian, or bisexual, and about 25 percent of them experience discrimination in the workplace.

"That's a whole lot of people potentially affected by this issue," she wrote in a seven-page dissent.

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