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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.
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A group of 76 US companies, including major tech players like Apple, Google, Microsoft, and Viacom, submitted a brief to the Supreme Court asking it to weigh in on whether Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of sex, also protects LGBT employees, Reuters reports:
The companies asked the Supreme Court to take up the case of Jameka Evans, a former security guard at a Georgia hospital who says she was harassed and forced to quit her job because she is gay. The companies said the lack of a federal law clearly prohibiting discrimination on the basis of sexual orientation has hindered recruitment in the 27 states that have not adopted their own such laws.
And “the uncertainty and vulnerability LGBT workers face results in diminished employee health, productivity, job engagement, and satisfaction,” wrote the companies’ lawyers at Quinn Emanuel Urquhart & Sullivan.
In March, a three-judge panel from the 11th Circuit Court of Appeals in Atlanta ruled against Evans in an appeal filed on her behalf by the LGBT legal advocacy organization Lambda Legal, dismissing her claim on the basis of a circuit court precedent from 1979. Lambda petitioned the full court to rehear Evans’ case, but it declined to do so in July, so the group took the case to the Supreme Court last month.
Different circuit courts have handed down contradictory opinions on this issue, so the high court is likely to take it up at some point in the near future, as it often does when federal judges split on a question of federal law.
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 filed a lawsuit on behalf of an employee at the beauty products manufacturer Estée Lauder Companies, accusing the company of discriminating against male employees by awarding different amounts of paid parental leave to mothers and fathers, the Wall Street Journal reports. According to the Journal, the EEOC is acting on behalf of a stock worker in Maryland, who sought to take advantage of the child-bonding leave benefit Estée Lauder offers to new mothers and was given just two weeks of leave as opposed to the six weeks mothers receive (on top of the time they are allowed to take off to recover from childbirth). New mothers also allegedly are offered flexible return-to-work benefits that are not available to fathers.
In its lawsuit, the EEOC is arguing that this policy violates the Equal Pay Act and Title VII of the Civil Rights Act and demanding back pay, damages, and injunctive relief for the stock worker and other male employees affected by the policy. US employers are not required by law to offer paid parental leave, but for those that do, the commission’s official position is that these benefits should be equally available to parents of both genders, except for medical leave benefits related to pregnancy and childbirth, which of course can be reserved for women.
In another discrimination complaint filed with the EEOC in June, JPMorgan Chase employee Derek Rotondo claimed that the bank’s parental leave policy discriminated against him and other working fathers by “relying on a sex-based stereotype that mothers are the primary caretakers of children.” JPMorgan Chase offers different benefits to “primary” and “secondary” caregivers—and according to Rotondo’s allegations, automatically designates mothers as primary caregivers but requires fathers to meet a set of eligibility criteria. The EEOC has not yet taken legal action on Rotondo’s behalf, but this case again reflects the growing pressure on companies not to discriminate between mothers and fathers in their parental leave policies.
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.
Dozens of employers filed an amicus brief in the Second US Circuit Court of Appeals in New York on Monday, urging the court to rule that Title VII of the Civil Rights Act of 1964, which bans discrimination in the workplace on the basis of sex, also protects LGBT employees, Reuters reports:
The companies said bias against gay employees is widespread, with more than 40 percent of gay workers reporting harassment and other forms of discrimination in various studies. The lack of a federal law clearly prohibiting discrimination on the basis of sexual orientation has hindered recruitment in states that have not adopted their own, the companies said. “Recognizing that our uniform federal law protects LGBT employees would benefit individual businesses, and the economy as a whole, by removing an artificial barrier to the recruitment, retention, and free flow of talent,” wrote the companies’ lawyers at Quinn Emanuel Urquhart & Sullivan.
The companies asked the 2nd Circuit to revive a lawsuit by the estate of Donald Zarda, who claimed he was fired from his job as a skydiving instructor on Long Island after he told a customer he was gay and she complained. Zarda died in a skydiving accident after filing the lawsuit.
The suit had been dismissed in April by a panel of three judges, who cited a previous ruling from 2000 in which the Second Circuit held that Title VII did not apply to LGBT workers. However, the full court agreed to hear the case last month, and may overturn that decision. That’s just what the Seventh Circuit in Chicago did in April when it overturned the dismissal of suit filed 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.