In what most believe is a long-overdue decision, the United States Court of Appeals for the Second Circuit ruled (in Zarda vs. Altitude Express, Inc. 1) that the Title VII of the 1964 Civil Rights Act does protect LGBTQ workers in the same manner that has historically protected from discrimination based on race, color, religion, sex or national origin.
It was a long-held view throughout the federal courts that “sexual orientation discrimination claims, including claims that being gay or lesbian constitutes nonconformity with a gender stereotype, are not cognizable under Title VII.” 2
That view began to change in 2015, when the Equal Employment Opportunity Commission (EEOC) determined that “sexual orientation is inherently a ‘sex-based consideration;’ accordingly an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” 3 Following that decision, the Seventh Circuit recognized that LGBTQ employees are protected by the federal sex discrimination laws4.
The Second and Seventh Circuits are the only two circuits that have joined the EEOC in the opinion that sexual orientation discrimination is covered under the protection from sex discrimination in Title VII of the 1964 Civil Rights Act. The Second Circuit handles federal cases for the states of Connecticut, New York and Vermont. The Seventh Circuit handles cases for the states of Wisconsin, Illinois and Indiana.
What does this mean for the LGBTQ community? This is a common-sense ruling for today’s legal landscape. It means that judical intrepretation of equal protection is trending in the right direction. While several states have provided their own protections against LGBTQ discrimination, ultimately, on a national level, the protections will be decided by Congress or by the United States Supreme Court reviewing the Zarda case or others regarding the same issues. The other possibility is that North Carolina’s legislature will provide its own protections for sexual orientation and the LGBTQ community.
Given the recent track record of the North Carolina legislature, it is likely that there we will not see any substantial movement to protect the LGBTQ community. As we learned from the “bathroom bill,” the legislature may instead exclude the possibility of discrimination claims for the LGBTQ community. Without sweeping changes in the coming elections, this is not a real possibility.
It is also unlikely that the current Congress will take the initiative or have the votes to provide clear legal authority to prevent discrimination regarding sexual orientation. It is also unlikely that this Congress will take steps to make it clear that federal law does not provide any such protections from discrimination. Further evidence of this is provided in the fact that the current Justice Department intervened in the Zarda case to specifically disagree with the EEOC’s position and filed a brief to argue that Title VII of the 1964 Civil Rights Act does not cover sexual orientation discrimination in the workplace.
The more likely scenario is that the Supreme Court will be the definitive voice and decision maker regarding this monstrous issue. With conflicting interpretations regarding the interpretation and applicability of sex discrimination under the Civil Rights Act, the Zarda ruling may be enough to get the attention of the Supreme Court and have the court accept review of these issues. The Supreme Court needs to step in and clarify this issue so that all federal district and circuit courts interpret the same law in the same way.
In all, the Zarda decision is a step to provide LBGTQ protection from discrimination in the workplace. Contacting local representatives and United States Congress members may push the goal of national recognition over the finish line.
1 Zarda v. Altitude Express, Inc. , No. 15-3775 (2d Cir. 2017)
2 Id. at p. 7 (citing Simonton v. Runyon, 232 F.3d 33, 35 (2d Cir. 2000) and Dawson v. Bumble & Bumble, 398 F.3d 211, 217-223 (2d Cir. 2005)
3 Baldwin v. Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641, at p. 5 (July 15, 2015)
4 Hively v. Ivy Tech, No. 15-1720 (7th Cir. 2017)
info: Russ A. Brinson is an attorney with Sodoma Law, based in Charlotte, NC. His practice areas include Employment Law, Business Litigation and Personal Injury. Brinson is certified by the North Carolina Dispute Resolution Commission to conduct Superior Court mediations.