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A skydiving instructor who was fired after disclosing to a client that he was gay had a valid discrimination claim under Title VII of the Civil Rights Act of 1964, the US Second Circuit Court of Appeals in New York ruled on Monday, finding that the protection against sex discrimination prohibited under Title VII was also applicable to sexual orientation. The suit brought by Donald Zarda, who died in a skydiving accident in 2014, had been dismissed last April by a three-judge panel, who cited a previous ruling from 2000 in which the Second Circuit held that Title VII did not apply to LGBT workers, but the court agreed to an en banc rehearing by all 13 judges, who decided 10–3 to reverse the panel’s decision.
In the opinion, written by Chief Judge Robert Katzmann, the court reasoned that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination”:
Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex. Indeed sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.
Katzmann advanced several additional arguments to underscore the court’s reasoning here: First, he used a “comparative test” that examined how Zarda’s employer would have responded if he were a woman and had he disclosed, as he did, that he was sexually attracted to men. Because he presumably would not have been fired in that case, his treatment depended on the variable of sex and thus, in the court’s view, constituted sex discrimination. He also pointed to Supreme Court precedent finding that Title VII protects employees from punishment for failing to conform to gender norms or stereotypes. Because homosexuality “represents the ultimate case of failure to conform to gender stereotypes,” Katzmann argued, discrimination on this basis constituted sex stereotyping, which Title VII prohibits.
Lastly, Katzmann deployed what Slate‘s Mark Joseph Stern describes as “perhaps the most persuasive theory of the case, the Loving principle”:
The White House is reviewing guidelines proposed by the Equal Employment Opportunity Commission in the waning days of the Obama administration to extend the commission’s interpretation of sex-based harassment to include actions based on gender identity and sexual orientation, Lydia Wheeler reports at the Hill. The unusual move has raised fears among civil rights advocates that it represents another effort by the Trump administration to roll back regulatory protections the previous administration sought to provide to LGBT employees:
The language is at odds with the way Cabinet officials in the Trump administration have viewed and carried out the laws governing discrimination, which can include harassment, when it comes to LGBT people. And that’s why civil rights advocates and a former commissioner fear it won’t be approved. …
What’s unusual, former EEOC Commissioner Jenny Yang said, is that the guidance is under review by the White House Office of Information and Regulatory Affairs (OIRA) and has been since November. Yang, who left the EEOC on Jan. 3, said the proposal is sub-regulatory guidance, which is not typically reviewed by the White House because it’s only an expression of the agency’s policy.
In tandem with the Trump administration’s decision last week to expand exemptions from the Affordable Care Act’s contraceptive coverage mandate, US Attorney General Jeff Sessions issued a guidance memo on Friday instructing federal agencies on how to interpret and apply federal laws regarding freedom of religion. The main takeaway from the broad but ambiguously worded guidance is that employers are to be granted the discretion to make hiring decisions based on their religious beliefs, BuzzFeed reported:
The guidance memo, which avoided mentioning pending cases by name but did refer to the ongoing controversy over contraception coverage in Obamacare, directs federal agencies to observe 20 “principles of religious liberty.” Among them, it says that religious employers are entitled to hire only workers whose beliefs and conduct are “consistent with the employer’s’ religious beliefs” — a directive adopted under former President George W. Bush — and that some of the legal principles extend “not just to individuals, but also to organizations, associations, and at least some for-profit corporations.”
Several rights groups immediately expressed concern that the guidance effectively opened the door for employers to discriminate against women and LGBT employees:
The Human Rights Campaign, the country’s largest LGBT group, issued a statement calling the guidance a “sweeping license to discriminate that puts millions of LGBTQ Americans at risk.” … Louise Melling, deputy legal director at the American Civil Liberties Union, was still reviewing the guidance early Friday afternoon. But she told BuzzFeed News she was concerned it prioritizes employers over the individuals nondiscrimination policies are designed to protect — such as women seeking contraception coverage and LGBT workers.
The US Equal Employment Opportunity Commission has found cause to believe that managers at a Cargill meatpacking plant in Colorado who allegedly refused to allow a group of Muslim employees to pray at work during their break times violated those workers’ civil rights, Kristen Leigh Painter reported at the Star Tribune last week:
The EEOC’s determination, reached Aug. 3, could set up a federal discrimination lawsuit should Cargill fail to seek a settlement agreement with the 140 fired workers seeking legal action. Of the thousands of discrimination charges filed with the federal government each year, a small fraction of them gain the backing of the commission. …
The U.S. EEOC also found reasonable cause last week that Teamsters Local No. 455, the union representing workers at the Fort Morgan plant, didn’t offer fair representation to the Muslim workers. Last October, the National Labor Relations Board sided with the terminated workers in their complaint. …
With the EEOC determining that there’s reasonable cause to believe discrimination occurred, Cargill and the employees now will have the chance to settle the matter through a confidential process called conciliation. If the two sides can’t reach an resolution then the employees’ private lawyers — and the EEOC on behalf of the U.S. government — could sue Cargill.
The dispute stems from December 2015, when a group of over 150 Muslim workers, mostly Somali immigrants, were dismissed from the Cargill plant after walking off the job in protest over a dispute over prayer breaks.
In an unusual step, lawyers from the US Department of Justice submitted an amicus brief in the Second Circuit Court of Appeals in New York on Wednesday opposing the Equal Employment Opportunity Commission’s position that Title VII of the Civil Rights Act of 1964, which bans sex discrimination, also prohibits discrimination on the basis of sexual orientation. BuzzFeed’s Dominic Holden reported on the brief Wednesday evening, noting that the Justice Department, which does not normally intervene in private employment disputes, is not a party in the case:
“The sole question here is whether, as a matter of law, Title VII reaches sexual orientation discrimination,” says the Justice Department’s brief. “It does not, as has been settled for decades. Any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.”
The Justice Department also contends that Title VII only applies if men and women are treated unequally. “The essential element of sex discrimination under Title VII is that employees of one sex must be treated worse than similarly situated employees of the other sex, and sexual orientation discrimination simply does not have that effect,” the brief says.
The brief was submitted in the case of Donald Zarda, a skydiving instructor who sued his former employer in 2010, claiming he had been fired after he told a customer he was gay and she complained. Zarda died in a skydiving accident after filing the lawsuit, but his estate has continued to pursue it. A three-judge panel from the Second Circuit had thrown out Zarda’s claim in April, citing a 2000 ruling in which the court had said Title VII did not apply to LGBT workers, but the full court agreed to hear the case in May.
Last summer, a three-judge panel from the US Court of Appeals for the Seventh Circuit in Chicago upheld a lower court’s decision to dismiss a lawsuit brought by Kimberly Hively, a former part-time employee of Ivy Tech Community College in Indiana, who said her employer had denied her a full-time job on the basis of her sexual orientation. In that ruling, the judges expressed the opinion that federal anti-discrimination law should include explicit protections for LGBT employees, but found no justification for allowing Hively’s discrimination case to proceed. Hesitant to legislate from the bench, the court said any change in the law or its interpretation should only come from Congress or the Supreme Court.
The case was subject to an en banc rehearing by the full court, however, and on Tuesday, the Seventh Circuit reversed the panel’s finding and ruled that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of sex, does indeed apply to LGBT people, the Associated Press reports:
Judge Richard Posner asked the attorney for the community college, John Maley: “Who will be hurt if gays and lesbians have a little more job protection?” When Maley said he couldn’t think of anyone who would be harmed, Posner shot back, “So, what’s the big deal?” Posner also said it was wrong to say a decades-old statute is “frozen” on the day it passed and that courts can never broaden its scope.
Eight out of the 11 judges who reheard the case, including Posner, were appointed by Republican presidents. … The issue could still land before the Supreme Court at some point. A GOP-majority House and Senate make it unlikely the Congress will amend the statute.
The court’s full opinion can be read here. BuzzFeed reporter Chris Geidner highlights the crux of the judges’ argument:
In July 2015, the US Equal Employment Opportunity Commission determined that discrimination against LGBT employees violated Title VII of the Civil Rights Act, and in March, the commission filed two lawsuits based on that interpretation, claiming that employers had violated the civil rights of gay and lesbian employees by looking the other way while their supervisors harassed them on the basis of their sexual orientation. One of these suits was settled in June and in July, a US federal appeals court in Chicago upheld the dismissal of a discrimination case brought by a gay Indiana woman against her employer, saying it had no legislative basis on which to accept her claim—though the judges on the panel wrote that they wished they did.
Finally, earlier this month, the EEOC got the verdict it was looking for from a federal court in the second suit filed earlier this year, EEOC v. Scott Medical Health Center. The commission described the ruling in a press release:
In a decision issued on Nov. 4 by U.S. District Judge Cathy Bissoon, the court denied Scott Medical Health Center’s motion to dismiss EEOC’s case. In its ruling, the court found that sexual orientation discrimination is a type of discrimination “because of sex,” which is barred by Title VII. Applying decisions of the U.S. Supreme Court finding that Title VII’s ban on sex discrimination includes adverse treatment of workers based on “sex stereotypes,” i.e. pre-conceived ideas of how a man or a woman should act or think, the federal court stated, “There is no more obvious form of sex stereotyping than making a determination that a person should conform to heterosexuality.”