A celebration of gay marriage outside the U.S. Supreme Court in 2015. Credit: Diego M. Radzinschi / ALM

The U.S. Supreme Court on Monday refused to decide whether the nation's workplace anti-bias law bars sexual orientation discrimination.

The justices, without comment, denied review in the case Evans v. Georgia Regional Hospital. Jameka Evans, a Savannah security guard, claimed she was harassed at work and forced from her job because she is a lesbian.

Evans, represented by Gregory Nevins of Lambda Legal, had asked the justices to rule that the ban on sex discrimination in Title VII of the Civil Rights Act of 1964 encompasses discrimination based on an individual's sexual orientation. In March, a divided three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit ruled that it did not.

The justices, however, may soon have another opportunity to take up the closely watched question. The full U.S. Court of Appeals for the Second Circuit heard arguments Sept. 26 in Zarda v. Altitude Express. Don Zarda, who has since died, sued his employer, Altitude Express, claiming he was fired from his job as a skydiving instructor there because of his sexual orientation, in violation of federal and New York state law.

A three-judge panel of the Second Circuit in July had ruled that Title VII does not prohibit discrimination on the basis of sexual orientation.

There is disagreement among the federal courts of appeals on the Title VII question. There is also disagreement between the U.S. Justice Department, led by U.S. Attorney General Jeff Sessions, and the Equal Employment Opportunity Commission.

The EEOC has argued in the lower courts that Title VII does prohibit sexual orientation discrimination even though it is not one of the protected categories specified in the statute. In July, the Justice Department rejected that interpretation in a brief filed in the Zarda case. The department told that court that the EEOC did not speak for the United States “and its position about the scope of Title VII is entitled to no deference beyond its power to persuade.”

But the Seventh Circuit in April ruled in an 8-3 en banc decision that Title VII's prohibition on sex discrimination incorporates sexual discrimination.

Evans worked at the Georgia Regional Hospital from August 2012 to October 2013. As the Eleventh Circuit panel wrote: “During her time at the hospital, she was denied equal pay or work, harassed, and physically assaulted or battered. She was discriminated against on the basis of her sex and targeted for termination for failing to carry herself in a 'traditional woman[ly] manner.' Although she is a gay woman, she did not broadcast her sexuality. However, it was 'evident' that she identified with the male gender, because of how she presented herself—'(male uniform, low male haircut, shoes, etc.').”

Georgia Regional, represented by Georgia's solicitor general, Sarah Hawkins Warren, took no position on whether the court should grant Evans's petition.

A friend-of-the-court brief, supporting Evans's high court petition, was filed by 76 major companies, including Apple, Linkedin, CBS Corp., Uber Technologies, Facebook, Microsoft, Intel and Google.

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