The United States Court of Appeals for the Second Circuit[i] ruled today (2/26/18) that Title VII of the Civil Rights Act of 1964 protects workers from workplace discrimination based on sexual orientation.[ii]
Title VII of the Civil Rights Act of 1964[iii] states that it is an “unlawful employment practice for an employer to refuse to hire or to discharge any individual, or otherwise discriminate against any individual … because of such individual’s race, color, religion, sex or national origin.”
Prior to this decision, it had been well established among the various Circuits, that sexual orientation discrimination claims were not cognizable under Title VII. The Supreme Court has never ruled on this issue.
The Second Circuit noted that over time, legal doctrine evolves and in 2015, for the first time, the EEOC held that “sexual orientation is inherently a ‘sex-based consideration’” and that a claim of discrimination on that basis is a claim for sex discrimination.
In 2017 the Eleventh Circuit[iv] indicated it would rule similarly, but it was bound by precedent[v], and then in another case the Seventh Circuit[vi] held that sexual orientation discrimination was sex discrimination[vii].
The Hively case concerned an adjunct professor teaching at a community college. She applied for six full time positions between 2009 and 2014, all of which were unsuccessful. Her part time contract was then not renewed. The court set forth an excellent summary of the judicial history of this issue and the evolution of our society ultimately holding that “Ivy Tech is disadvantaging [Hively] because she is a woman, not a man, who wants to have romantic attachments with female partners. In other words, Ivy Tech is disadvantaging her because she is a woman who is not conforming to its notions of proper behavior.”
In the Zarda case the employee claims he was fired after he revealed his sexual orientation to a client. The Second Circuit undertook a similar but expanded analysis and held that sexual orientation is inherently part of a person’s sex and that as such discrimination on the basis of sexual orientation is sex discrimination.
Neither case decided if there was discrimination, just that the claim could be made and that if proved, would be a violation of Federal Law.
The important thing about the Seventh Circuit and Second Circuit decisions is that they are “en banc”, which means all judges of the court sat together to make this decision. As a result the only appeal available is to the Supreme Court.
So now in the Second and Seventh Circuits, until it is decided by the Supreme Court, it is a violation of Title VII of the Civil Rights Act of 1964 to discriminate in the workplace against a person due to their sexual orientation. Other Circuits may well follow as new cases make their way through those jurisdictions.
[i] The Second Circuit serves New York, Connecticut, and Vermont
[ii] Zarda v. Altitude Express, https://tinyurl.com/ybq8efwd
[iii] https://www.eeoc.gov/laws/statutes/titlevii.cfm
[iv] The Eleventh Circuit serves Alabama, Florida and Georgia
[v] Evans v. Georgia Regional Hospital, http://media.ca11.uscourts.gov/opinions/pub/files/201515234.pdf
[vi] The Seventh Circuit serves Illinois, Indiana and Wisconsin
[vii] Hively v. Ivy Tech Community College, https://tinyurl.com/mlznx8j
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The author[s] is solely responsible for this blog submission. It does not represent the position of the New York State Bar Association or its Committee.