Labor / Employment, On The Job

Second Circuit Says Sexual Orientation Is Protected Under Title VII

With a broader circuit split, this case will almost certainly give the high court another opportunity to resolve the issue.

By Evan Gibbs and Rebecca Silk  
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(Ted Eytan / Flickr)

Ed note: This article was co-authored with Rebecca Silk, one of my colleagues whose practice is focused on labor and employment, including claims based on harassment and discrimination. 

Reversing itself, the Second Circuit held on Monday, February 26, that sexual orientation discrimination is discrimination “because of . . . sex” under Title VII in Zarda v. Altitude Express. The Second Circuit’s decision aligns it with the Seventh Circuit and places it squarely at odds with the Eleventh Circuit.

This is important for two reasons. First and most obviously, if you live in New York, Connecticut, Vermont, Indiana, Illinois, or Wisconsin, then federal law prohibits you being fired for your sexual orientation, while there is no such protection for those in Georgia, Alabama, and Florida. (It’s basically a roll of the dice everywhere else.) Second, perhaps less obviously, the Zarda case tees the issue up nicely for review by SCOTUS.

The plaintiff in the case, a skydiver, claimed that his employer fired him because of his sexual orientation. (Coincidentally, the plaintiff died in a BASE-jumping accident shortly after filing suit, but his estate took up the case and is continuing to prosecute it.) A three-judge panel of the Second Circuit initially held that the instructor had no claim under Title VII because sexual orientation was not a protected class. The plaintiff, however, requested en banc review and the request was granted.

But this case is interesting for more than just its precedential value on a highly publicized contemporary issue. It’s also interesting because it exposed a rare public divide between two federal agencies. While the case was being litigated, the Second Circuit asked the Equal Employment Opportunity Commission (the agency charged with enforcing Title VII) to file an amicus brief in the case. The EEOC argued that sexual orientation discrimination claims “fall squarely within Title VII’s prohibition against discrimination on the basis of sex.” Among other reasons, the EEOC’s brief states that any line drawn “between sexual orientation discrimination and discrimination based on sex stereotypes is unworkable and leads to absurd results.”

The Department of Justice then filed an amicus brief with the Second Circuit in opposition to the EEOC (even though the Second Circuit had not asked for the DOJ’s input). The DOJ argued that this issue has been “settled for decades” and that Title VII does not prohibit sexual orientation discrimination “as a matter of law.” The DOJ went on to state that the question of whether “sexual orientation discrimination should be prohibited by statute, regulations, or employer actions” is one of “policy” and “[a]ny efforts to amend Title VII’s scope should be directed to Congress rather than the courts.” When the Court heard oral arguments in the case on September 26, 2017, and the EEOC and DOJ were still completely at odds.

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It’s also interesting that this is the second time a federal appellate court has reversed itself on this issue. In Hively v. Ivy Tech Community of College of Indiana, the Seventh Circuit, sitting en banc, also reversed an earlier panel decision.

The Seventh Circuit reasoned that “any discomfort, disapproval or job decision based on the fact that the complainant — woman or man — dresses differently, speaks differently, or dates or marries a same-sex partner is a reaction purely and simply based on sex.” Thus, any distinction between a gender nonconformity claim and a sexual orientation claim is non-existent. The court also held that bias based on sexual orientation constitutes associational discrimination because “if we were to change the sex of one partner in a lesbian relationship, the outcome would be different.”

But the Eleventh Circuit in Evans v. Georgia Regional Hospital held it was bound by past precedent holding that sexual orientation was not a protected characteristic under Title VII.  In a concurring opinion, Judge Pryor reasoned that the EEOC’s argument that sexual orientation is per se discrimination based on gender stereotypes and is thus protected under Title VII “relies on false stereotypes of gay individuals.” In particular, “by assuming that all gay individuals behave the same way or have the same interests, the [EEOC] and the dissent disregard the diversity of experiences of gay individuals.”

Although SCOTUS denied review of the Evans case in December 2017, the Zarda case will almost certainly give the high court another opportunity to resolve the issue.

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evan-gibbsEvan Gibbs is an attorney at Troutman Sanders, where he primarily litigates employment cases and handles traditional labor matters. Connect with him on LinkedIn here, or e-mail him here. (The views expressed in this column are his own.)

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