Supreme Court won't hear LGBT job discrimination case

Richard Wolf | USA TODAY

WASHINGTON — The Supreme Court won't consider a Georgia woman's complaint that she was fired from her job because she is a lesbian, a temporary setback for LGBT rights.

The court is widely expected to hear such a case in the near future because federal appeals courts are split on whether workplace discrimination laws protect sexual orientation.

But the justices on Monday turned away the Georgia case, perhaps waiting for a similar challenge now pending before the U.S. Court of Appeals for the 2nd Circuit in New York.

In turning down Jameka Evans' case against Georgia Regional Hospital, the high court avoided a split between lower courts that will have to be addressed in the future. The 11th Circuit appeals court upheld her firing, while the Chicago-based 7th Circuit appeals court ruled that sex discrimination laws protect gays and lesbians.

"By declining to hear this case, the Supreme Court is delaying the inevitable and leaving a split in the circuits that will cause confusion across the country,” said Greg Nevins of Lambda Legal, which represented Evans. “But this was not a 'no,' but a 'not yet.'"

A three-judge panel of the 11th Circuit originally ruled against Evans in March. At the time, Judge William Pryor — one of President Trump's candidates for a Supreme Court nomination — said the fight belonged in Congress, which "has not made sexual orientation a protected class." The full appeals court later refused to rehear the case.

In the 7th Circuit, Judge Diane Wood — who President Barack Obama had considered for the Supreme Court in 2009 and 2010 — ruled in April that "it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex."

That ruling on behalf of Kimberly Hively, an instructor at Ivy Tech Community College in South Bend, Ind., made the 7th Circuit the highest federal court to protect LGBT people under the 1964 Civil Rights Act. Title VII of that law also bans discrimination on the basis of race, color, national origin and religion.

Gay rights groups want to get the issue to the Supreme Court before Justice Anthony Kennedy — the court's swing vote and the author of several landmark gay rights decisions — retires. Kennedy, 81, is being watched closely for signs that he may step down and give President Trump a second high court opening.

The 2nd Circuit case that's pending involves a New York skydiving instructor who alleged he was fired because he was gay. He later died, but his sister and life partner are continuing to press the case.

The court already is considering another major gay rights case involving a Colorado baker who refused to create a custom wedding cake for a gay couple's wedding celebration. Colorado is one of 21 that bars discrimination based on sexual orientation.

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