Sexual Orientation a Subset of Sex under Title VII
In Zarda v. Altitude Express, an employee sued his employer alleging sex discrimination in violation of Title VII. The employee, a gay man, claimed his employer fired him solely because he had disclosed his sexual orientation to a client. The U.S. District Court for the Eastern District of New York granted summary judgment to the employer, concluding the employee had failed to show he had been discriminated against because of his sex.
The Second Circuit reversed, holding sexual orientation discrimination claims actionable under Title VII as a subset of sex discrimination. The appellate court noted that Title VII prohibits discrimination because of an individual's sex. Thus, "sexual orientation discrimination—which is motivated by an employer's opposition to romantic association between particular sexes—is discrimination based on the employee's own sex." The en bancholding overturned the Second Circuit's prior decisions in Simonton v. Runyon and Dawson v. Bumble & Bumble.
Widening Circuit Split
Important in the appellate court's reasoning was the recent case history regarding sexual orientation discrimination. At the time of the Second Circuit's Simonton and Dawson decisions, the Equal Employment Opportunity Commission (EEOC), as well as a majority of circuits, held that sexual orientation claims were not cognizable under Title VII. But in 2015, the EEOC decided Baldwin v. Foxx, holding that discrimination based on sexual orientation is sexual discrimination under Title VII because "sexual orientation is inherently a sex-based consideration."
Since that ruling, the Eleventh and Seventh Circuits revisited the issue. In Evans v. Georgia Regional Hospital, the Eleventh Circuit declined to recognize such a claim because the Supreme Court had not explicitly overruled the circuit's prior holding that sexual orientation discrimination was not actionable. The Seventh Circuit took the opposite view. After taking a "fresh look at its position in light of the developments at the Supreme Court extending over two decades," the Seventh Circuit held en bancin Hively v. Ivy Tech Community College of Indiana that "discrimination on the basis of sexual orientation is a form of sex discrimination." The Second Circuit noted that "legal doctrine evolves" and followed the view of the EEOC and Seventh Circuit.
The circuit split between the federal appeals courts leads Section of Litigation leaders to believe that the U.S. Supreme Court will rule on the subject eventually. "At some point the Supreme Court will have to decide the issue," says J. Dalton Courson, New Orleans, LA, cochair of the Section's Civil Rights Litigation Committee. However, he adds, "The defendants in Zarda are not appealing the Second Circuit's ruling so it will have to wait for another case." In the meantime, "courts are generally trending toward the Hively-Zarda rationale but the Eleventh Circuit went the other way in Evans, so we will have to wait and see how other courts follow up on these cases," he states.
"We often see the Supreme Court taking up the issue when they see a difference in circuit courts," advises Helen E. Casale, Norristown, PA, cochair of the Section's LGBT Law and Litigators Committee. "Here, we have no guidance from the Supreme Court on this issue, so the courts will continue to be split based on where courts are located and what judges are on the bench," she explains.
Employers and Employees Take Caution
"This case is a big deal for those who live in states that don't have gender identity as a protected class," comments Courson. "It provides more ammunition to say that employers must take sexual orientation seriously."
While the Second Circuit's ruling is important, the matter is far from settled. Lawyers representing employers should "make sure they are educated on local ordinances, state law, and what is happening nationally, and make sure the employer understands this decision is still in flux so the employer has to be very careful what decision it will make regarding firing someone solely on the basis of sexual orientation," explains Casale. "No matter the jurisdiction, there is a chance that this type of discrimination is prohibited under Title VII," agrees Courson.
Employees, too, must realize the issue is in flux. Lawyers advising employees should "tell employees whether they have a case that is on the local level, and they have to understand it's an uphill battle," explains Casale. "There is nothing that provides us with a lot of guidance right now."
In general, "attorneys who practice employment law must make sure they are educating themselves on a weekly basis, on trends, differences, cases coming out, and laws being passed," concludes Casale. "If you are sitting idly by, not going to CLEs or educating yourself, you are at a loss."
Catherine M. Chiccine is an associate editor for Litigation News.
Hashtags: #TitleVII, #sexdiscrimination, #LGBT, #civilrights, #employmentlaw
- Am. Bar Ass'n Sec. of Civil Rights & Social Justice Commission on Sexual Orientation and Gender Identity Report to the House of Delegates, Resolution & Report 116A (Feb. 5, 2018).
- Debra Cassens Weiss, "Title VII protects workers from discrimination based on sexual orientation, en banc 2nd Circuit says," ABA Journal (Feb. 26, 2018).
- Nancy Marcus, "Title VII Protections Extended to Victims of Sexual-Orientation Discrimination," Civil Rights Litigation Practice Points (July 21, 2015).
- Sidney O. Minter, "Sex Discrimination under Title VII: An Ever-Changing World," Minority Trial Lawyer (Feb. 22, 2017).
- Debra Cassens Weiss, "Title VII protects gay workers, 7th Circuit rules; Posner backs 'interpretive updating' of old laws," ABA J. (Apr. 5, 2017).
- Lori Ecker, "Discrimination in Employment Issues for LGBT Individuals," TYL (Aug. 30, 2017).
- Elizabeth Naccarato, "A Primer on Employment Discrimination of LGBT Workers Under Title VII," ABA 101 Practice Series (March 4, 2015).
- Baldwin v. Foxx, EEOC Decision No. 0120133080 (July 15, 2015).
- Evans v. Ga. Reg'l Hosp., 850 F.3d 1248 (11th Cir. 2017).
- Hively v. Ivy Tech. Cmty. Coll. of Ind., 853 F.3d 339 (7th Cir. 2017) (en banc).
- Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000).
- Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005).
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