EEOC and DOJ Oppose Each Other in Court - American Society of Employers - Anthony Kaylin

EEOC and DOJ Oppose Each Other in Court

The Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) are opposing each other in a lawsuit over the meaning of the term “sex” in Title VII.  The DOJ argues that the Title VII definition of sex does not include sexual orientation. The EEOC argues that it does. 

The case before the 2nd Circuit Court of appeals involves a skydiving instructor, Zarda, who informed a client that he was homosexual and had recently experienced a break-up.  Zarda  explained that he often informed female clients of his sexual orientation – especially when they were accompanied by a husband or boyfriend – in order to mitigate any awkwardness that might arise from the fact that he was strapped tightly to the woman.  The student’s husband, who also was skydiving, found out about the statements Zarda made and complained to Zarda’s employer, Altitude Express.  The company then fired Zarda.  

Zarda filed an EEOC complaint and got a right to sue letter. 

Zarda then sued for unlawful termination based on sexual orientation discrimination under both Title VII and New York state law.  The trial court had thrown out the Title VII, but left the state law claim to go to trial.  Zarda passed away before trial, but his estate continued the claim.  They lost at trial and on appeal (Zarda v. Altitude Express,  No. 15-3775 (2nd Circuit Court of Appeals, 4/18/17)).  However, Zarda asked for en banc review (all judges of the 2nd Circuit to participate in the review) of the decision, and in May the 2nd Circuit agreed.

The DOJ filed an amicus brief in the case.  For the DOJ, “The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination,” the Justice Department said in a friend-of-the-court brief, citing the 1964 Civil Rights Act, which bars discrimination in the workplace based on “race, color, religion, sex or national origin.” “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.”

The 11th Circuit of Appeals supports the DOJ position.

The EEOC also filed an amicus brief as well.  The EEOC has long argued that the term “sex” in Title VII includes sexual orientation.  The EEOC argued that sexual orientation discrimination is inextricably linked to gender, involves gender-based discrimination regarding whom a person associates with, and is linked to gender stereotypes and non-conformity.  Therefore, it falls under Title VII protection.  

Most recently, the 7th Circuit Court of appeals held in an en banc decision that the EEOC is correct in its interpretation (Hively v. Ivy Tech, No. 15-720 (7th Circuit Court of Appeals, April 4, 2017).  The 11th Circuit also recently denied the appeal stating that Title VII does not cover sexual orientation.

The 6th Circuit Court of Appeals does not support sexual orientation Title VII cases.  In the 2011 case of Gilbert v. Country Music Ass’n, Inc., the 6th Circuit explicitly stated that “[a] claim premised on sexual-orientation discrimination thus does not state a claim upon which relief may be granted.”

By taking two separate positions, the government is actually doing the right thing.  Title VII when originally written in 1964 did not contemplate sexual orientation in the definition.  Therefore, the definition is fair game.  LGBT advocacy group Lambda Legal and the plaintiff in the 11th Circuit case appealed to the U.S. Supreme Court to review that case.  If the Supreme Court accepts the appeal, it will have the opportunity to clarify the split of opinions among the appellate circuits.  Therefore, the government, and thus employers, will have a more consistent interpretation and set of expectations when these issues arise.

 

Source: NYTimes  7/27/17, Seyfarth Shaw August 22, 2017, Law360 9/8/17

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