Bostock v. Clayton Cnty. Bd. of Comm'rs, 894 F.3d 1335

Background

This opinion is a dissent from the court’s decision not to rehear Bostock en banc; the panel had relied on prior Fifth Circuit precedent (Blum) to dispose of the Title VII claim.
The central legal question is whether Title VII’s prohibition on sex discrimination reaches discrimination against gay and lesbian employees because they fail to conform to sex-based stereotypes about whom a person of their gender should love.
Judge Rosenbaum argues that Price Waterhouse’s sex-stereotyping doctrine controls and requires treating sexual-orientation discrimination as sex discrimination under Title VII.
Two other circuits (Second in Zarda and Seventh in Hively) addressed the issue en banc and concluded Title VII covers such discrimination; those decisions contain lengthy reasoned analyses.
Rosenbaum criticizes the panel’s reliance on Blum v. Gulf Oil (a one-sentence Fifth Circuit holding) and Smith v. Liberty Mutual (abrogated by Price Waterhouse), asserting those precedents are inconsistent with Price Waterhouse and with Glenn v. Brumby (Eleventh Circuit precedent protecting transgender claimants via sex-stereotyping).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Title VII prohibits discrimination against gay/lesbian employees whose sexual orientation fails to conform to sex stereotypes	Bostock: such discrimination is discrimination "because of sex" under Price Waterhouse’s sex-stereotyping doctrine	County/panel: prior precedent (Blum/Smith) bars recognizing sexual-orientation claims under Title VII	Panel denied relief based on Blum; en banc rehearing denied; Rosenbaum dissents urging that Price Waterhouse requires coverage
Whether Blum remains good law after Price Waterhouse	Bostock/Evans: Price Waterhouse abrogates Blum; sex-stereotyping principle controls	Majority: relies on stare decisis and prior-panel rule to follow Blum	Majority maintained post below; Rosenbaum argues courts should overrule Blum en banc
Whether the Court should grant en banc rehearing to resolve the conflict among circuits	Bostock: en banc rehearing needed to provide reasoned, principled decision and resolve circuit split (Zarda, Hively)	Court (majority): declined rehearing en banc	Rehearing en banc denied; dissent contends denial leaves significant unresolved legal and social consequences
Whether adversarial testing and reasoned exposition are required before leaving precedent intact	Rosenbaum: judicial legitimacy demands reasoned, adversarial-tested explanation on important issues	Majority: did not provide such an explanation in denying rehearing	Dissent criticizes lack of reasoned explanation and urges rehearing or overruling of Blum

Key Cases Cited

Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018) (en banc) (held sexual-orientation discrimination is barred by Title VII)
Hively v. Ivy Tech Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc) (held Title VII covers sexual-orientation discrimination via sex-stereotyping logic)
Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979) (single-sentence holding that discharge for homosexuality is not prohibited by Title VII)
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (established that discrimination based on failure to conform to gender stereotypes is sex discrimination under Title VII)
Smith v. Liberty Mut. Ins. Co., 569 F.2d 325 (5th Cir. 1978) (earlier Fifth Circuit decision addressing effeminacy claims; relied on by Blum but later undermined by Price Waterhouse)
Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011) (applied Price Waterhouse to protect transgender employees from sex-stereotyping discrimination)
Evans v. Ga. Reg’l Hosp., 850 F.3d 1248 (11th Cir. 2017) (Rosenbaum dissent arguing Price Waterhouse abrogates preexisting panel precedent excluding sexual-orientation claims)
Bostock v. Clayton Cty. Bd. of Comm’rs, [citation="723 F. App'x 964"] (11th Cir. 2018) (panel decision invoking Blum; rehearing en banc denied)