Sunday, March 12, 2017

Check out this powerful dissent by Judge Rosenbaum

The case is Jameka Evans v. Georgia Regional Hospital. Judge Rosenbaum's powerful dissent start's out this way:
A woman should be a “woman.” She should wear dresses, be subservient to men, and be sexually attracted to only men. If she doesn’t conform to this view of what a woman should be, an employer has every right to fire her. That was the law in 1963—before Congress enacted Title VII of the Civil Rights Act of 1964. But that is not the law now. And the rule that Title VII precludes discrimination on the basis of every stereotype of what a woman supposedly should be—including each of those stated above—has existed since the Supreme Court issued Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), superseded in part by The Civil Rights Act of 1991, Tit. I, § 107(a), 105 Stat. 1075 (codified at 42 U.S.C. § 2000e–2(m)), 28 years ago. Yet even today the panel ignores this clear mandate. To justify its position, the panel invokes 38-year-old precedent—issued ten years before Price Waterhouse necessarily abrogated it—and calls it binding precedent that ties our hands. I respectfully disagree. 
And from the conclusion:
Presidential-Medal-of-Freedom recipient Marlo Thomas has expressed the
sentiment that “[i]n this land, every girl grows to be her own woman.”17 Title VII
codifies the promise that when she does, she will not be discriminated against on
the job, regardless of whether she conforms to what her employer thinks a woman
should be. Because the panel does not read Title VII to fulfill that promise, I
respectfully dissent.
The 2-1 decision is authored by District Judge Jose Martinez and joined by William Pryor (who also writes a concurring opinion).  Slate covers the opinion here:
On Friday, the U.S. Court of Appeals for the 11th Circuit ruled that Title VII of the Civil Rights Act of 1964 does not prohibit employers from discriminating against workers on the basis of their sexual orientation. Many federal courts—in addition to the Equal Employment Opportunity Commission—have reached the opposition conclusion, finding that Title VII’s ban on “sex discrimination” encompasses anti-gay discrimination. But by a 2–1 decision, a panel for the 11th Circuit bucked this trend, reading Title VII as narrowly as possible and, in the process, ignoring at least one critical Supreme Court precedent.

Friday’s decision, Evans v Georgia Regional Hospital, involved the case of Jameka Evans, a lesbian who presents as traditionally masculine. She sued her employer, alleging that she endured hostility and harassment in the workplace in violation of Title VII. Although that statute does not explicitly outlaw anti-LGBTQ discrimination, it does bar “sex discrimination,” including sex stereotyping. Evans argued that this prohibition bars employers from discriminating on the basis of gender presentation and sexual orientation.


Anonymous said...

The 11th is so backward.

Anonymous said...

Well Marlo Thomas has spoken, so I guess that settles it.