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Elbert P. Tuttle U.S. Court of Appeals Building Elbert P. Tuttle U.S. Court of Appeals Building
A full federal appeals court in Georgia declined to take up the discrimination claim of a gay man who says he was fired after 13 years because of his sexual orientation, sparking heated dissents from justices who argued the majority relied on decades-old precedent to turn down the case. The U.S. Court of Appeals for the Eleventh Circuit denied to take Gerald Lynn Bostock’s case en banc Tuesday in a 9-2 ruling, upholding a panel decision that sided with the Clayton County, Georgia, Juvenile Court System. Bostock filed a lawsuit against the county, claiming he was fired in 2013 as a child welfare services coordinator after he revealed he’s gay. The question before the court was whether protections ensured by Title VII of the Civil Rights Act of 1964 extend to sexual orientation, in addition to race, national origin, religion and sex. The issue has divided federal appeals courts, as well as government agencies, in recent years, teeing up the Supreme Court to take up the question. Bostock’s attorneys  filed a petition in May f or the Supreme Court to take up the panel decision. That petition is pending. It’s one of the two cases for consideration before the high court. The other case from the Second Circuit, Zarda v. Altitude Express, was heard before a full panel, which found that Title VII protections should extend to gay workers. That ruling earlier this year followed the same result in the Seventh Circuit, Hively v. Ivy Tech Community College. Until recently, sexual orientation was consistently not considered a protected category by the courts, which said it’s the duty of Congress to enumerate such protections in the statute. The EEOC and gay rights advocates have instead argued that sexual orientation should be considered a protected category under sex discrimination in Title VII.An Eleventh Circuit panel in another case grappling with the same issues, Evans v. Georgia Regional Hospital ,  rejected the argument for protections last year. The Supreme Court declined to take up Evans . Judges Robin Rosenbaum and Jill Pryor dissented in the Bostock case, arguing that the issue the case raises is “indisputably en-banc worthy.” The justices point to decisions in the past 15 months in the Second and Seventh Circuits that extended protections to LGBT workers. In the Second Circuit, the U.S. Equal Opportunity Commission and President Donald Trump’s Justice Department argued on opposite sides, furthering pointing to a divide on the question. The EEOC has pushed for protections for LGBT workers for several years.   “I cannot explain why a majority of our court is content to rely on the precedential equivalent of an Edsel with a missing engine, when it comes to an issue that affects so many people,” Rosenbaum wrote in her dissent. She noted that research shows that in 2011, 8 million U.S. workers identified as lesbian, gay and bisexual, and one-quarter of them reported workplace discrimination because of their orientation. “I continue to firmly believe that Title VII prohibits discrimination against gay and lesbian individuals because they fail to conform to their employers’ views when it comes to whom they should love,” Rosenbaum wrote. “Particularly considering the amount of the public affected by this issue, the legitimacy of the law demands we explain ourselves.” Clayton County’s attorneys, Jack Hancock and William Buechner of Freeman Mathis & Gary, did not immediately respond to request for comment. Bostock’s attorney Brian Sutherland, Atlanta-based partner at Buckley Beal, said he agrees with the dissent and said the question is of “extraordinary importance, particularly in light of the split among the circuits.” “The issue of whether Title VII protects gay and lesbian employees is extraordinarily important not only for Mr. Bostock, but for all the gay and lesbian people working to earn a living in this country,” Sutherland said in an email. “We certainly hope the Supreme Court will grant Mr. Bostock’s petition and answer this important question that the Eleventh Circuit declined again to consider en banc.”

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