Recently, the Eleventh Circuit Court of Appeals, by a vote of 9-2, refused to rehear a decision by a three judge panel which had found that discrimination based upon sexual orientation is not a violation of Title VII of the Civil Rights Act. Relying on “binding precedent,” the Eleventh Circuit panel had held that “[d]ischarge for homosexuality is not prohibited by Title VII.” The panel went on to state that absent an intervening decision of the U.S. Supreme Court or a decision issued by the full Eleventh Circuit, i.e., an “en banc” decision, the panel must adhere to its precedent.
In an interesting opinion, the two dissenting judges expressed their view that the precedential value of the case relied on by the Eleventh Circuit panel was the “equivalent of an Edsel with a missing engine, when it comes to an issue that affects so many people.”
While the law is well settled that discrimination based on failure to conform to a gender stereotypes is sex-based discrimination in violation of Title VII (e.g., discrimination against a transgender individual based on his or her failure to act how a man or woman is supposed to act), according to the Eleventh Circuit, a gender non-conformity claim is not the same as a claim based on sexual orientation. The dissent chastised the majority for refusing to grant a rehearing en banc to “explain why gender nonconformity claims are cognizable except for when a person fails to conform to the ‘ultimate’ gender stereotype by being attracted to the ‘wrong’ gender.”
In two recent decisions in other circuits, the Second and Seventh Circuit Courts of Appeals, contrary to the Eleventh Circuit, held that sexual orientation discrimination constitutes discrimination because of sex in violation of Title VII. While a growing number of courts find that Title VII protections extend to discrimination based on sexual orientation, at least for now, the Eleventh Circuit’s position is that they do not. Obviously, this issue will be decided the U.S. Supreme Court.
U.S. Department of Labor resumes issuing opinion letters
The U.S. Department of Labor Wage and Hour Division (WHD) recently issued three opinion letters including: what counts as work time under the FLSA when employees travel for work; whether 15-minute rest breaks required every hour by an employee’s serious health condition must be paid or may be uncompensated; and whether certain lump-sum payments from employers to employees are considered “earnings” for garnishment purposes under Title III of the Consumer Credit Protection Act.
After more than 70 years, the WHD stopped issuing opinion letters in 2010. However, in June 2017, the WHD announced that it would be resuming its longstanding practice of doing so. “An opinion letter is an official document authored by WHD on how a particular law applies in specific circumstances presented by the person or entity requesting the letter. Opinion letters represent official statements of agency policy.” WHD opinion letters can be found at www.dol.gov/whd/opinion/guidance.htm.