Title VII Protection for Sexual Orientation
March 1, 2018
It’s a case that could soon have far-reaching consequences: the 2nd U.S. Court of Appeals ruled on February 26th that Title VII of the Civil Rights Act of 1964 protects workers on the basis of sexual orientation. In a 10-3 ruling, the Second Circuit argued that protections for sexual orientation were included in the landmark Civil Rights law, which prohibits workplace discrimination "on the basis of...race, color, religion, sex, or national origin."
This was the second ruling by an appeals court in the last year to reject a 2017 Justice Department argument that Title VII did not cover sexual orientation discrimination in the workplace. The 7th U.S. Court of Appeals in Chicago ruled similarly on April 4, 2017.
The ruling arrives in a politically charged era for worker rights, as the 2017 decision by the Trump Justice Department specifically weighed in on the original lawsuit to assert legislative authority. They argued that only Congress had the power to dictate "efforts to amend Title VII's scope", rather than the courts.
To better understand the appellate court's decision, it's useful to examine the history of the original law as well as the case that argued Title VII violations.
Title VII and The Civil Rights Act of 1964
First presented by President Kennedy in 1963, the Civil Rights bill was not expected to pass. Kennedy's assassination on November 22, 1963, changed the political atmosphere and allowed Lyndon Johnson to persuade Congress to push the historic legislation through, albeit in a much weaker form than it exists today.
Title VII's workplace protections were originally limited to race, color, religion, sex, or national origin", but later supplemented to include protections for pregnancy (in the Pregnancy Discrimination Act of 1978), age (in the Age Discrimination in Employment Act), disability (in the Americans with Disabilities Act of 1990), and sexual harassment.
Ample precedent existed, then, for Title VII expansion and reimagining. The specific issue of sexual orientation protection in the workplace came up in the case of Zarda v. Altitude Express in 2016.
Zarda v. Altitude Express
Donald Zarda was a skydiving instructor at Altitude Express when, in response to a female student's concerns about tandem jumping, he responded that he was "100% gay." The student's boyfriend complained and Altitude Express terminated Mr. Zarda.
Mr. Zarda filed a suit asserting that Title VII protected him from dismissal on the basis of sexual orientation because "sex" encompassed the discrimination he allegedly experienced. The district court ruled against him, and a second court upheld the ruling.
The appeals process continued even after Mr. Zarda's accidental death in 2014. His estate continued to argue Title VII protection, and the Equal Employment Opportunity Commission eventually agreed. Attorney General Eric Holder issued a memorandum late the same year arguing that the protection existed on the basis of gender identity, and a 2015 decision by the EEOC supported the memo.
The Justice Department under Attorney General Jeff Sessions then filed a brief in 2017 arguing against Title VII protections.
The implications of the February 26th decision are still being considered. Contradictory rulings in recent years may require further clarification, though in December of 2017 the Supreme Court declined to address a comparable Georgia case.
In the Workplace
Savvy employers have long operated under the Holder perception because it is the safer stance in an era of fluctuating official policy. More specifically, most intentional legal and human resources perspectives have operated under the parallel position that the assumption that a man should be attracted to a woman, and vice versa, is discrimination based on gender.