Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination based on race or color, sex, national origin and religion. It does not specifically prohibit discrimination based on sexual orientation, however. In fact, in Zarda v. Altitude Express, Inc., the Second Circuit dismissed the plaintiff’s claims of sexual orientation-based discrimination since this type of discrimination is not covered by Title VII. On Monday, however, the Second Circuit reversed that decision, finding that discrimination based on sexual orientation is included under Title VII.
Due to the wording of Title VII, which did not explicitly list sexual orientation as a protected category with regard to workplace discrimination, employees have long been vulnerable to sexuality-based discrimination. To be clear, no federal law actually prohibited discriminatory employment practices against LGBT people. State laws were, and are, a different story. Even though the Equal Employment Opportunity Commission (EEOC) announced that it viewed sexual orientation-based discrimination as a Title VII violation, its interpretations have no authority with regard to federal law.
For years, sexuality or sexual orientation-based discrimination cases have been regularly dismissed. But as times change, workers have increasingly begun filing lawsuits for this type of discrimination. Last year, the Seventh Circuit Court of Appeals made a landmark decision in Hively v. Ivy Tech Community College, finding that sexual orientation discrimination is covered by the sex discrimination provision in Title VII. In the Hively case, the plaintiff “described a situation in which, holding all other things constant and changing only her sex,” the discrimination would not have occurred.
Trump Weighs In
A 2010 discrimination case involving Donald Zarda, a sky-diving instructor from Long Island, was found in favor of Altitude Express, his employer. According to the lawsuit, Mr. Zarda told his female sky-dive partner that he was “100 percent gay.” Her boyfriend complained to Altitude Express, and Zarda was terminated as a result. Zarda then filed his own lawsuit, but the Second Circuit affirmed the original decision. After Zarda’s death in a 2014 sky-diving accident, his appeal was continued by his estate. The Trump Administration even got involved, arguing that the protections of Title VII do not apply to sexual orientation. A MA employment law attorney can help you protect your rights if you’ve been discriminated against at work.
But the Second Circuit overturned its previous ruling in February, finding that sexual orientation discrimination is encompassed by the sex discrimination provision. Although the court admitted that this was likely not the provision’s original intent, deciding to include sexual orientation discrimination follows in line with the decision to expand other aspects of Title VII, such as including sexual harassment.
The Second Circuit’s decision holds that: “Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor.” As such, employment discrimination based on sexual orientation qualifies as sex discrimination “because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.”
This decision is welcome news for millions of LGBT workers, but also for anyone who wishes to see an increase in workplace justice and equality. If you are being discriminated against because of your sexual orientation, you don’t need to suffer in silence anymore. A Boston employment law attorney can help you determine how to proceed if you’ve been the victim of workplace discrimination. Continue reading