On February 26, 2018, in Zarda v. Altitude Express, Inc., the United States Second Circuit Court of Appeals found that employees may bring discrimination claims on the basis of sexual orientation under Title VII of the Civil Rights Act of 1964. The Second Circuit joins the Seventh Circuit as the only courts of appeals to hold sexual orientation discrimination is a viable claim under the law. The Eleventh Circuit has rejected such claims, and thus, there is a clear conflict in the federal courts.
In recent years, the EEOC has advanced the position that Title VII should be interpreted to protect against sexual orientation discrimination. Several months ago, the Seventh Circuit issued a landmark decision in Hively v. Ivy Tech Community College, in which an adjunct professor alleged she was denied promotions because she is a lesbian. The Seventh Circuit reasoned that discrimination on the basis of sex inherently encompasses discrimination on the basis of sexual orientation. The Zarda court agreed. We previously reported on these cases in this legal update video.
Interestingly, before the court heard argument in the Zarda case, the Justice Department filed an amicus brief arguing against the position taken by the EEOC. In other words, the Justice Department argued that sexual orientation discrimination is not protected by Title VII. The Justice Department’s decision to enter the Zarda case in opposition of another federal agency was controversial, as it is a rare for the government to be at odds with itself.
In light of Zarda and Hively, the big question on most people’s minds is whether the United Sates Supreme Court will settle the issue. The Supreme Court already has a basis to consider the efficacy of sexual orientation discrimination because of the conflict between the circuit courts. More importantly, the Zarda and Hively courts based their reasoning on the Supreme Court’s prior rulings in Constitutional cases involving race discrimination and same sex marriage. Nevertheless, the Supreme Court may wait until more circuit courts have addressed the issue, as it did before ultimately deciding the question of same sex marriage in the landmark 2015 Obergefell case.