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Second Circuit Rules on Title VII in Zarda Case

March 9th, 2018


A second federal circuit court has ruled the Title VII prohibition on sex discrimination encompasses sexual orientation discrimination.

A second federal circuit court has ruled the Title VII prohibition on sex discrimination encompasses sexual orientation discrimination.

Recently, in the case of Zarda v. Altitude Express, the Second Circuit Court of Appeals ruled that the Title VII prohibition on sex discrimination includes sexual orientation discrimination. The case arose when Donald Zarda, a skydiving instructor who identifies as gay, claimed that his position was terminated after a customer complained that the worker disclosed details about his sexual orientation. This debate involves the gay rights community’s longstanding argument that Title VII’s protection against sex-based discrimination includes discrimination based on sexual orientation.

The argument at the center of this case arose in the 1998 case of Sundowner v. Oncale, in which Justice Scalia noted that protections in Title VII guard against not just “principal” but also “comparable” evils. For many years, however, courts have been divided on how Title VII protections should apply to LGBTQ rights.

What is Title VII?

Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. Title VII applies to private and public colleges and universities as well as employment agencies and labor organizations. Discrimination is prohibited in hiring and firing, compensation or classification of workers, transfers, promotions, layoffs, recalls, job advertisements, recruitment, testing, use of company facilities, training and apprenticeship programs, fringe benefits, pay, retirement plans, and disability leave. The Equal Employment Opportunity Commission (EEOC) is the government agency responsible for investigating Title VII claims.

Arguments Made in the Case

The EEOC responded to the case by filing an amicus brief citing three reasons why sexual orientation discrimination is prohibited by Title VII, a position it has maintained since 2015. These three arguments are that sexual orientation discrimination is discrimination “because of” sex,  that it is associational discrimination, and also that it is a type of sex stereotyping. This amicus brief resulted in federal agencies arguing on either side of the case with the Department of Justice under the Trump administration arguing against the EEOC. The Second Circuit ultimately rejected the Department of Justice’s arguments, ruling that a worker’s sex is a factor in discrimination based on sexual orientation.

How the Case has Been Received

Gay rights activists have hailed the Zarda case as a landmark decision. It is imperative that companies who operate in Connecticut, New York, and Vermont, which comprise the Second Circuit, remain up to date with this information as employers may see an increase in same sex discrimination claims due to this change in the law. It is also worth noting that other circuits have taken different responses to this issue. While the Seventh Circuit was the first to rule last year that Title VII protects gay workers, the Eleventh Circuit has held that workers are not protected by Title VII. Moreover, the differing interpretations of Title VII by the various circuit courts makes it more likely that the U.S. Supreme Court will take up this issue in the future.

Continue Reading the Universal Life Church’s Blog

Title VII issues are just one of the many complicated areas involving LGBTQ rights. Each month, the Universal Life Church’s blog strives to chronicle various developments in the area of LGBTQ rights. By reading our blog, you can stay up to date with various developments in this area of the law.

(image courtesy of Jakob Owens)

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