11th Circuit Denies En Banc Review in Evans, Setting Up Supreme Court Appeal

The 11th Circuit Court of Appeals denied a petition for rehearing en banc on July 6 in Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017), in which a three-judge panel comprised of two circuit judges and a district court judge ruled that binding circuit precedent (from the old 5th Circuit) precluded the panel from reconsidering the question of whether Title VII’s ban on sex discrimination includes sexual orientation discrimination.

Plaintiff Jameka K. Evans, represented by Lambda Legal, had urged the Circuit to reconsider the issue en banc, noting that the 7th Circuit had recently become the first federal circuit court to construe Title VII to apply to such claims, in Hively v. Ivy Tech Community College, 853 F.3d 339 (7th Cir. en banc 2017), and that the 2nd Circuit has granted en banc review of the same question in Zarda v. Altitude Express, 855 F.3d 76 (2nd Cir. 2017), to be argued in September. Lambda Legal promptly announced that it would be filing a petition for certiorari with the Supreme Court, which would be due to be filed by the middle of the first week in October, just as the Court is beginning its October 2017 Term. A brief in opposition to the Petition seems unlikely, as Georgia Regional Hospital did not appear to argue before the 11th Circuit panel, but one could be filed up to 30 days after the Petition for Certiorari is filed. Thus, it seems likely that the Supreme Court would not start discussing the petition in a cert conference until late October or November if the parties use their full allotted time under the Supreme Court rules to draft and submit their papers to the Court.

For the full story, access the Summer 2017 issue of LGBT Law Notes.