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The Circuit Split on LGBTQ Protections Under Title VII Just Deepened

On February 26, in Zarda v. Altitude Express, the Second Circuit (sticking a needle in the eye of the Justice Department) joined the Seventh Circuit and the EEOC in concluding that sexual orientation discrimination is sex discrimination under Title VII. The Eleventh Circuit recently held the opposite, potentially setting this issue up for Supreme Court review (eight other Circuits have held that sexual orientation is not explicitly covered by Title VII). Notwithstanding the contrary Circuit decisions, and the fact that neither the Seventh Circuit nor the Eleventh Circuit decision ended up before the Supreme Court, this issue is being litigated more and more. So I would expect it to be taken up by the Supreme Court sooner rather than later.

In the Zarda decision, the Second Circuit overruled prior district court case law in holding that sexual orientation should be viewed as a subset of “sex,” and therefore included within Title VII’s protections. The Court gave several reasons for its conclusion: 1) an individual’s sexual orientation is defined by their sex in relation to the sex of those to whom the individual is attracted; 2) sexual orientation discrimination arises from assumptions and stereotypes about how members of a particular sex/gender are supposed to behave, including who they are supposed to be attracted to; and 3) sexual orientation discrimination amounts to “associational discrimination” based on sex/gender.

Despite the conflict between the Justice Department and the EEOC on the applicability of Title VII to sexual orientation discrimination, local governments continue to march steadily toward providing greater protections for LGBTQ employees. Twenty-two states and the District of Columbia already expressly prohibit sexual orientation discrimination, as do countless cities around the country, including Tucson. This suggests employers would be well advised to ramp up their awareness of and sensitivity to issues concerning sexual orientation in the workplace, as the trend plainly appears to be favoring the enactment of explicit protections for LGBTQ employees. Interestingly in Hively (the Seventh Circuit case noted above) the employer (a college) actually had a policy in place prohibiting sexual orientation discrimination. The college (or their attorneys) took the approach in litigation, however, that the employee could not bring a claim under Title VII because Title VII did not include sexual orientation as a protected class. That strategy ultimately failed, and the employer was sent back to square one to try and defend its actions as non-discriminatory in the first instance. Not a great look for that employer, considering the school’s own internal values already provided protections for LGBTQ employees.

Article Written By: Ariel Henderson

Employment Law

Published 3/1/2018