Ge­or­gia les­bian takes po­ten­tially his­toric case to fed­eral court

Jameka Evans ap­peal­ing rul­ing in dis­crim­i­na­tion case against Ge­or­gia Re­gional Hospi­tal

GA Voice - - Georgianews -

By PA­TRICK SAUN­DERS

psaun­ders@the­gavoice.com

A down­town At­lanta court­room was the scene of a Dec. 15 hear­ing in a case that could change the land­scape for LGBT em­ploy­ees across the coun­try. A panel of three judges with the U.S. Eleventh Cir­cuit Court of Ap­peals heard ar­gu­ments in Lambda Le­gal’s case on be­half of Jameka Evans, a Sa­van­nah se­cu­rity guard who was forced to leave her job be­cause she is a les­bian. The Eleventh Cir­cuit is a fed­eral court with ju­ris­dic­tion over the district courts in Ge­or­gia, Florida and Alabama.

Evans v. Ge­or­gia Re­gional Hospi­tal is the lat­est Ti­tle VII case, in which (typ­i­cally) LGBT and pro­gres­sive le­gal groups like Lambda Le­gal and the ACLU ar­gue that dis­crim­i­na­tion based on their client’s sex­ual ori­en­ta­tion should be ruled a vi­o­la­tion of Ti­tle VII of the Civil Rights Act of 1964, which in­cludes a pro­vi­sion that pro­hibits dis­crim­i­na­tion based on the sex of an in­di­vid­ual. The Eleventh Cir­cuit agreed with Lambda Le­gal’s ar­gu­ment in 2011 that the Ge­or­gia Gen­eral As­sem­bly vi­o­lated Ti­tle VII when Vandy Beth Glenn was fired for be­ing trans­gen­der.

“The over­all news is I think we’ll win — even­tu­ally,” said Greg Nevins, Lambda Le­gal Coun­sel and Work­place Fair­ness Pro­gram Direc­tor, in com­ments fol­low­ing the hear­ing. “This was just to get her day in court.”

Chai Feld­blum, a com­mis­sioner with the Equal Em­ploy­ment Op­por­tu­nity Com­mis­sion, was on hand as well, say­ing, “When the Civil Rights Act passed in 1964, it should have been clear right there that it cov­ered gay peo­ple and trans peo­ple.” Feld­blum, who is the EEOC’s first openly les­bian com­mis­sioner, added that when it comes to get­ting LGBT peo­ple cov­ered un­der Ti­tle VII, “we are now in an era of le­gal cor­rec­tion.”

Land­mark in­ter­ra­cial mar­riage rul­ing cited

Evans filed the law­suit in the U.S. District Court for the South­ern District Court “It is heart­break­ing to know that no mat­ter how good I was at my job, be­ing a les­bian with a short hair­cut meant I would never be good enough. I’m here to­day be­cause I be­lieve you shouldn’t be afraid of be­ing fired sim­ply be­cause of who you are and who you love.” of Ge­or­gia in April 2015, ar­gu­ing that Ge­or­gia Re­gional Hospi­tal vi­o­lated Ti­tle VII by dis­crim­i­nat­ing against her be­cause of her sex­ual ori­en­ta­tion and her non­con­for­mity with gen­der norms of ap­pear­ance and de­meanor.

In her com­plaint, Evans al­leged that she was tar­geted by her work­place su­per­vi­sor “for ter­mi­na­tion due to the fact that [she] do[es] not carry [her]self in a tra­di­tional woman man­ner” and be­cause she is a self-de­scribed “gay fe­male” and “… it is ev­i­dent [she] iden­tif[ies] with the male gen­der be­cause [she] pre­sented [her]self vis­ually (male uni­form, low male hair­cut, shoes, etc.).” Evans fur­ther al­leged that she was “pun­ished be­cause [her] sta­tus as a gay fe­male did not con­form to [her] de­part­ment head’s … gen­der stereo­types as­so­ci­ated with women.”

The district court dis­missed Evans’ com­plaint, ar­gu­ing that Ti­tle VII doesn’t pro­tect em­ploy­ees from such dis­crim­i­na­tion. Lambda Le­gal filed an ap­peal with the Eleventh Cir­cuit in Jan­uary, stat­ing in their brief that the district court’s rul­ing must be re­versed be­cause the court’s conclusion that Evans can­not bring a Ti­tle VII claim based on dis­crim­i­na­tion against her due to her sex­ual ori­en­ta­tion, gen­der-non­con­form­ing ap­pear­ance and de­meanor con­flicts with de­ci­sions of the Supreme Court, the Eleventh Cir­cuit court and other fed­eral courts, and the EEOC.

“Nu­mer­ous Supreme Court cases hold … that Ti­tle VII is vi­o­lated when an em­ployee suf­fers mis­treat­ment that would not have oc­curred had the em­ployee been of the other sex,” Lambda Le­gal stated in Evans’ ap­peal. “It is now set­tled law that Ti­tle VII pro­hib- its dis­crim­i­na­tion based on gen­der-non­con­for­mity and there is no jus­ti­fi­ca­tion for im­mu­niz­ing such dis­crim­i­na­tion if the gen­der non-con­form­ing trait is an em­ployee’s at­trac­tion to those of the same sex rather than a dif­fer­ent sex. Even more fun­da­men­tally, when a woman is fired for her ro­man­tic in­ter­est in women while men are not, it is plain that dis­crim­i­na­tion ‘be­cause of such in­di­vid­ual’s … sex’ has oc­curred.”

Evans’ at­tor­neys also cited the court’s land­mark de­ci­sion Lov­ing v. Vir­ginia, which held that dis­crim­i­na­tion against an em­ployee in an in­ter­ra­cial mar­riage is dis­crim­i­na­tion based on the em­ployee’s race.

“Be­cause Ti­tle VII treats all cov­ered traits the same, dis­crim­i­na­tion against a woman in a re­la­tion­ship with a woman must be dis­crim­i­na­tion be­cause of her sex if she would not have been treated ad­versely if her re­la­tion­ship had been with a man,” the ap­peal stated.

‘It is sex stereo­typ­ing and against the law’

Thurs­day’s hear­ing was the group’s first crack at ar­gu­ing their case in fed­eral court. Ge­or­gia Re­gional Hospi­tal chose not to present its ar­gu­ments.

“For too long, LGBT em­ploy­ees have been forced to hide who they are at work for fear of back­lash and dis­crim­i­na­tion. It is time for em­ploy­ers to rec­og­nize that dis­crim­i­na­tion on the ba­sis of sex­ual ori­en­ta­tion is a form of sex dis­crim­i­na­tion, and is un­law­ful,” Nevins said in a state­ment is­sued af­ter the hear­ing. “Ge­or­gia Re­gional Hospi­tal tar­geted Jameka Evans for ha­rass­ment and even­tu­ally forced her out of her job be­cause she is a les­bian who doesn’t fit an em­ployer’s stereo­type about who women are — that is sex stereo­typ­ing and against the law.”

Evans said, “My su­per­vi­sor at Ge­or­gia Re­gional Hospi­tal did not like that I was a les­bian who didn’t fit his stereo­type of how a woman should look. It is heart­break­ing to know that no mat­ter how good I was at my job, be­ing a les­bian with a short hair­cut meant I would never be good enough. I’m here to­day be­cause I be­lieve you shouldn’t be afraid of be­ing fired sim­ply be­cause of who you are and who you love.”

It is un­clear when the three-judge panel will is­sue its rul­ing.

De­cem­ber 23, 2016

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