The split among appeals courts over whether Title VII of the Civil Rights Act of 1964 prohibits sexual orientation discrimination deepened Feb. 26, as the 2nd U.S. Circuit Court of Appeals ruled that it does. The decision makes it likely that the Supreme Court ultimately will have to rule on the issue, said Michelle Phillips, an attorney with Jackson Lewis in White Plains, N.Y.
Two appellate courts now agree with the Equal Employment Opportunity Commission’s (EEOC’s) position that Title VII protects against discrimination based on sexual orientation.
“Claims of sexual orientation discrimination are increasingly being litigated,” said Sam Schwartz-Fenwick, an attorney with Seyfarth Shaw in Chicago. “[A]n increasing number of courts are finding that such claims can be brought under Title VII, the law remains in flux. This uncertainty will continue until the Supreme Court addresses the issue or Congress passes clarifying legislation.”
He recommended that employers increase their sensitivity to issues related to sexual orientation in the workplace during this period of uncertainty.
Phillips noted that 22 states plus the District of Columbia prohibit sexual orientation discrimination.
Fired Gay Skydiver Sues
In the 2nd Circuit case, a skydiving instructor sued his former employer, alleging he was fired from his job after he revealed to a female customer that he was gay. He told her this to calm her worry about being strapped tightly to him during the jump. Her boyfriend complained to the employer following this disclosure and alleged that the skydiver touched her inappropriately, and the instructor was discharged. He alleged sex discrimination under Title VII, asserting that he was fired because he failed to conform to male sex stereotypes and because he was gay.
The plaintiff died in a skydiving accident, but his estate continued with the claim. The district court dismissed his Title VII claim. It held that the plaintiff had failed to show gender stereotyping under Title VII based on his sexual orientation. In addition, it noted that prior case law in the 2nd Circuit held that Title VII did not prohibit discrimination based on sexual orientation.
2nd Circuit Changes Course
During oral arguments before the 2nd Circuit in this case, the EEOC advocated for a broad reading of Title VII that encompassed sexual orientation. But the Justice Department argued that Title VII’s prohibition on sex discrimination did not extend to claims of sexual orientation discrimination, Schwartz-Fenwick noted.
The 2nd Circuit reversed, overruling prior case law and determining that sexual orientation should be treated as a subset of sex discrimination for several reasons:
The 2nd Circuit also observed that the EEOC and the 7th Circuit had reversed their previous views that Title VII did not bar sexual orientation discrimination, Schwartz-Fenwick noted.
But in 2017, the 11th Circuit held that Title VII did not extend to sexual orientation, he observed. The Supreme Court declined to review the 11th Circuit Court’s decision in December 2017.
The other federal appeals courts—namely the 1st, 3rd, 4th, 5th, 6th, 8th, 9th and 10th Circuits—have also held that sexual orientation is not expressly covered by Title VII, said Sean Crotty, an attorney with Honigman in Detroit. The Supreme Court may want to see more recent opinions from the circuits on the issue before granting review, he said.
The 2nd Circuit encompasses Connecticut, New York and Vermont.