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In recent years, a Circuit Court split has emerged regarding
whether Title VII prohibits discrimination based solely on sexual orientation. On February 26, 2018, the Justices of the
Second Circuit Court of Appeals heard an appeal seeking reinstatement of a
Title VII claim brought by the estate of a former employee, Donald Zarda (“Mr.
Zarda”). The estate alleged that Mr.
Zarda was fired from his job as a skydiving instructor after he told a customer
he was gay. Zarda v. Altitude Express
addressed a narrow question: whether Title VII prohibits discrimination on the
basis of sexual orientation. The Second
Circuit overturned its earlier precedent and held that Title VII does prohibit
discrimination on the basis of sexual orientation.
In Hively v. Ivy Tech Cmty. Coll., the Seventh
Circuit similarly held that sexual orientation discrimination is prohibited
under Title VII. In contrast, the
Eleventh Circuit (which includes Alabama, Florida, and Georgia) held in Evans
v. Georgia Reg’l Hosp. that Title VII does not prohibit sexual orientation
discrimination. Not only are the Circuit
courts split on this issue, but the federal government is also divided. In Zarda, the EEOC and the Department
of Justice offered opposing arguments.
The legal issue turns on the question of whether Title VII’s
prohibition of discrimination the basis of “sex” includes sexual
orientation. The Second Circuit
concluded that it does 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.” In contrast, the
Eleventh Circuit reasoned that although discrimination on the basis of sex
stereotyping is impermissible, a plaintiff must present enough evidence to show
that they were discriminated against based on a sex stereotype. In other words, although a plaintiff may be a
lesbian, if she does not present sufficient evidence to show that she was
discriminated on the basis of sex stereotyping, she cannot state a claim under
Title VII. A separate cause of action
does not exist solely for sexual orientation.
This area of the law continues to rapidly evolve across the
country. Employers should carefully
monitor the law in their Circuit to ensure they are fully complying with any
changes. For employers who operate in
multiple states that may encompass different Circuits, this requires extra
vigilance. In addition to ambiguity in
federal law, many states and local governments have enacted their own laws
prohibiting sexual orientation discrimination, and employers must comply with
those laws as well. At a minimum,
employers should investigate any complaints of discrimination on the basis of
sexual orientation, gender identity, and gender expression and respond
appropriately.