Elbert P. Tuttle U.S. Court of Appeals Building (Photo: Rebecca Breyer/ALM)

An attorney defending Clayton County, Georgia, in a discrimination lawsuit filed by a gay employee asked the U.S. Supreme Court Friday to let stand an appellate ruling that federal laws do not prohibit discrimination on the basis of sexual orientation.

Freeman Mathis & Gary attorneys Jack Hancock and William Buechner Jr. defended the May 10 ruling by the U.S. Court of Appeals for the Eleventh Circuit in Atlanta in their response to a petition for a writ of certiorari filed by Gerald Lynn Bostock on May 25.

Bostock is represented by Brian Sutherland and Thomas Mew IV of Atlanta's Buckley Beal.

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Bostock was assigned to Clayton County's juvenile court as a child welfare services coordinator in 2013 when he began playing in a gay recreational softball league that he would later claim generated criticism and led to an internal audit of county funds he managed.

Bostock was subsequently fired for conduct unbecoming a county employee, prompting the lawsuit. The county claimed the firing was legitimate, nondiscriminatory and unrelated to Bostock's sexual orientation.

Magistrate Walter Johnson and Senior District Judge Orinda Evans dismissed the case after determining Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion or sex, does not bar discrimination based on sexual orientation.

The Eleventh Circuit agreed and noted in an unpublished opinion issued in May that “Discharge for homosexuality is not prohibited by Title VII.” The Atlanta-based appellate court rejected Bostock's petition to hear the case en banc. In July, the court rejected an unusual motion from its own bench for an en banc hearing—despite dissents by Judges Robin Rosenbaum and Jill Pryor.

In asking the Supreme Court to take up the case, Bostock points out federal appellate courts in the Second and Seventh Circuits have split from the Eleventh in holding that Title VII does prohibit discrimination on the basis of sexual orientation.

But Freeman Mathis lawyers argued the Supreme Court has turned down cases when circuits have been split on the underlying legal issues before. Last year, the high court denied certiorari in another Georgia employment discrimination case that the lawyers said “presented the identical issue that [Bostock] seeks to present to the Court in this case.”