• U.S. Court of Appeals Reverses Course Concerning Title VII Protection of LGBTQ+ Rights
  • March 5, 2018 | Author: Christopher R. Fontan
  • Law Firm: Brunini, Grantham, Grower & Hewes, PLLC - Jackson Office
  • On Monday, February 26, 2018, the U.S. Second Circuit Court of Appeals issued a landmark ruling in holding that workplace discrimination premised on an employee’s sexual orientation is covered by Title VII’s express prohibition against gender-based discrimination. In so doing, the Second Circuit reversed its own precedent established less than one year ago, and in doing so, offered further judicial support for the protections of the LGBTQ+ community.

    In a divided, en banc opinion, the Second Circuit decided the case of Zarda v. Altitude Express. In its decision, the Court revived a sex bias claim brought by Donald Zarda, a Long Island, New York sky-diving instructor who claimed that his employer, Altitude Express, had terminated his employment based on his sexual orientation. In its decision, the Second Circuit held that it saw “no principled basis for recognizing a violation of Title VII for associational discrimination based on race, but not on sex.” With its ruling, the case was sent back to the trial court for further proceedings.

    The federal lawsuit was brought on Mr. Zarda’s behalf, and against his former employer, by the U.S. Equal Employment Opportunity Commission (EEOC). Interestingly, during the appeal, the U.S. Department of Justice filed an amicus brief in opposition to Zarda and the EEOC. In its briefing, the Justice Department stated that “[t]he sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination. . . . . It does not, as has been settled for decades. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.” Additionally, the Justice Department noted that the EEOC was “not speaking for the United States.”

    For years, LGBTQ+ employees could only advance claims of workplace discrimination under a theory of “sex stereotyping” discrimination—that is, discrimination based on an employee’s failure to confirm to an employer’s perceived gender roles. In July 2015, the U.S. Equal Employment Opportunity Commission (EEOC) issued its first administrative ruling declaring that Title VII’s use of the word “sex” meant both gender and sexual orientation. However, no federal court immediately adopted or mirrored the EEOC’s guidance.

    In fact, the Second Circuit expressly rejected the EEOC’s guidance just last year when it decided the case of Christiansen v. Omnicom Group, Inc. There, the Second Circuit ruled that employees did possess viable Title VII claims based on the theory of “sex stereotyping.” However, the Court also expressly stated that Title VII’s definition of “sex” did not cover a person’s sexual orientation—a decision that tracked the historical rulings of other U.S. courts, in holding that the term “sex” within Title VII refers only to a person’s gender—meaning that discrimination had to be premised on whether a worker is male or female.

    Then, only nine days after the Christensen ruling, on April 4, 2017, the U.S. Seventh Circuit Court of Appeals became the first federal appellate court to rule that Title VII does extend workplace protections on the basis of their sexual orientation. In deciding the case of Hively v. Ivy Tech, the Seventh Circuit opted to expand the definition of “sex” under Title VII to include an individual’s “sexual orientation.” With its ruling in Zarda, the Second Circuit is now aligned with both the EEOC and Seventh Circuit, thus ruling that Title VII effectively presents two avenues of recovery for individuals asserting claims on the basis of their sexual orientation.

    The Second Circuit’s majority ruling Zarda was written by the Court’s Chief Judge, Robert A. Katzmann. He was joined, either in whole or in part, by nine other judges on the court. The three remaining judges dissented. In addition to Judge Katzmann’s decision, seven judges wrote separate opinions, concurring and dissenting.

    Either the Justice Department or Altitude Express could seek review of the decision before the United States Supreme Court. Neither party had any immediate comment on the ruling. In December 2017, the U.S. Supreme Court passed on an initial opportunity to weigh-in on the issue when it declined to hear an appeal from the Eleventh Circuit Court of Appeals, in which that Court held that Title VII did not extend to sexual orientation.