In a case decided Monday by the U.S. 2nd Circuit Court of Appeals, the full court in an en banc hearing definitively decided that Title VII of the Civil Rights Act of 1964 covers sexual orientation as a protected class. What makes this case extremely interesting is that the EEOC and U.S. Department of Justice both filed briefs taking diametrically opposing positions.
The case centers on Don Zarda, who sued his employer, Altitude Express, claiming he was fired from his job as a skydiving instructor because of his sexual orientation, in violation of federal and New York state law. Allegedly, a boyfriend of one of Zarda’s female clients complained to Zarda’s boss that Zarda had inappropriately touched his girlfriend and mentioned he was gay. Zarda was fired. Zarda has passed away since the initial filing of his case, but it is being continued by his sister Melissa Zarda and his life partner Bill Moore. The trial court ruled in favor of Altitude Express in a motion for summary judgement. On appeal, a three-judge panel also ruled in favor of Altitude Express, stating that Title VII does not cover sexual orientation.
A rehearing was required of the full 2nd Circuit. The rehearing was accepted and occurred on September 26, 2017. The EEOC argued that Title VII covers sexual orientation because discrimination is dependent on the basis of sex. There is little legislative history on the meaning of the word “sex” in the enactment of the law. The EEOC had expanded their view upon reexamination of Supreme Court and the circuit judicial opinions as well as polling employees and employers.
However, the U.S. Department of Justice filed an amicus brief in the case arguing for a strict interpretation of a law in which sexual orientation was not a consideration of the word “sex” when the law was enacted. The DOJ argued that that Congress has repeatedly failed to pass bills to clarify the statute’s language, and the majority of circuits had not expanded the definition of sex to include sexual orientation.
The judges at the hearing were a little perturbed that two U.S. agencies were pitted against each other in this case. Judge Rosemary Pooler stated, “It’s a little bit awkward for us to have the federal government on both sides of the case.” The judge also asked if the EEOC solicited input from the DOJ in its decision-making, to which the EEOC said they were “not aware” if they did.
In the current ruling, the majority opinion stated that “Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor. Sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.”
The court recognized that “[b]ecause Congress could not anticipate the full spectrum of employment discrimination that would be directed at the protected categories, it falls to courts to give effect to the broad language that Congress used.” On the other hand, the dissent argued that there is no interpretation of the text that would show Congress passed protections for gay men and women when Title VII became law. In fact, homosexuality in just about all states for a long time was illegal: “discrimination against gay women and men, by contrast, was not on the table for public debate. In those dark, pre-Stonewall days, same-sex sexual relations were criminalized in nearly all states.”
It is likely that this case will be appealed to the U.S. Supreme Court. Currently, the 2nd (New York, Connecticut, and Vermont) and 7th Circuits (Illinois, Indiana, and Wisconsin) support the expanded reading of Title VII. The 11th Circuit Court of Appeals (Alabama, Florida, and Georgia) ruled the opposite. The Supreme Court had an opportunity earlier this year to hear the 11th Circuit appeal but declined, leaving the split in circuits. The Supreme Court may leave the split intact. There is likely no clear majority in the court to overturn this decision as well.
Sources: law.com 2/26/18. Law360 2/26/18, Law.com 9/26/17, Zarda et al. v. Altitude Express, No. 15-3775, (2nd Circuit Court of Appeals, 2/26/18)