Sharp Dissent Challenges Eleventh Circuit’s Recent Decision on Sexual Orientation Discrimination Under Title VII

A recent decision from the Eleventh Circuit has now caused a split in the circuit courts as to whether a claim for discrimination based upon sexual orientation can be asserted under Title VII. In a six-page dissent, Judge Robin Rosenbaum calls out her peers on their July 18, 2018, three-page decision to affirm a lower court’s ruling to dismiss a sexual orientation claim under Title VII in Bostock v. Clayton County Board of Commissioners. Bostack brought claims under Title VII against his employer alleging that he was wrongfully criticized and ultimately terminated because of his sexual orientation and identity. The lower court dismissed Bostack’s Title VII claims, and Bostock brought an appeal. On appeal, the Eleventh Circuit relied on a 39-year-old ruling to determine that Title VII’s prohibition against discrimination “because of sex” does not include discrimination based on sexual orientation.