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SCOTUS Asked to Make Final Determination on Whether Title VII Applies to Sexual Orientation

After years of the federal government dancing around the issue, debating with itself while the states deepened their drastic split on the approach to this issue, it looks like the Supreme Court is going to make a final determination on whether Title VII protects against discrimination based on sexual orientation.

This is an issue we’ve touched on quite a few times in the past, and for good reason. The states have varied wildly from passing laws preventing individual towns from protecting the LGBT community to making laws explicitly extending that protection.

At the same time, the Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DoJ) have taken contradictory positions within the federal government itself.

With such a drastic split, this is the perfect sort of case for the Supreme Court to resolve as an issue. It will be an extremely close ruling and it’s almost impossible to guess how they will ultimately rule. With that in mind, let’s look at the case the Court will be ruling on, Title VII itself, the positions in the federal and state governments, and what this case will mean for the future.

The Altitude Express Case

The case petitioning for certiorari–a fancy way of saying asking the Supreme Court to hear its case, is known as Zarda v. Altitude Express or just Altitude Express. The case, first filed nearly a decade ago in 2010, deals with the firing of a man named Donald Zarda–allegedly over his sexual orientation.

Apparently, Zarda told a female customer he was gay to make her more comfortable being strapped to him during an assisted dive. Her boyfriend complained to the company that the comment had made his girlfriend uncomfortable, and Zarda was ultimately fired over the incident. Zarda has since died in a base-jumping accident, but his family has continued pursuing the case on his behalf.

The case originally saw a loss handed to it out 2nd Circuit District Court. However, just a few months ago in February, the 2nd Circuit Court of Appeals out of Manhattan reversed this decision and handed a 10-3 victory to Zarda’s case.

This went directly against a brief which Trump’s DoJ chose to file back in July of 2017, explicitly taking the position that sexual orientation is not protected against discrimination by Title VII. This was especially notable because it was directly opposite of the EEOC’s position on the issue at that time and now.

The current ruling on the case closely mirrors the EEOC’s position of the last decade or so on the issue, arguing that because Title VII sex discrimination incorporates sexual orientation.

The logic behind this is that if you discriminate based on sexual orientation, you are necessarily doing so because you’ve made a judgment based on gender norms. Thus, sexual orientation must be protected under Title VII.

How Does Title VII Work

Title VII itself is one of the most commonly litigated federal laws around when it comes to employment law, forbidding employers from discriminating against employees based on race, gender, national origin, color or religion. It also prevents employers from retaliating, through termination or otherwise, against employees who report such discrimination.

Extending this protection against discrimination in the workplace to the LGBT community has, unfortunately, been an uphill battle. The states have been extremely split on the issue, and the lack of federal clarity has been the impetus behind the very fact that the Supreme Court may be considering this case.

The States’ Approach to LGBT Discrimination in the Workplace

With Title VII so unclear, many states have taken their own steps to protect the LGBT community from being discriminated against in the workplace. As of now, 22 states have passed laws which add protection against discrimination based on either sexual orientation, gender identity, or both.

Many more of these laws cover sexual orientation than gender identity; these same states often have similar laws when it comes to discrimination in housing.

On the flip side to this are many states which have gone far out of their way to ensure LGBT persons do not receive these sorts of protections. Texas, for instance, went so far as to pass a bill barring any county, municipality, or other group from adopting laws or rules which protect any class not already protected by Texas law.

This means that not only are LGBT persons not protected, the individual cities can’t offer that protection even if they want to. Texas is not alone either, Arkansas, North Carolina and Texas have all passed similar laws.  North Carolina even went to the trouble of, convening an emergency session of their general assembly to overturn a Charlotte ordinance barring discrimination against LGBT persons.

The EEOC vs. The DoJ on Title VII

The EEOC, as the federal agency tasked with enforcing Title VII and other federal workplace discrimination laws, has been weighing in on this issue for some time. For the last several years they have been working to advance the cause of LGBT people in the workplace.

Back in July of 2013, the EEOC declared as an agency that sexual orientation was a protected class as a form of sex-based discrimination.  Since then, they have been investigating claims of discrimination based on gender identity or sexual orientation. The EEOC has even brought a couple federal lawsuits alleging discrimination against homosexual employees on the basis of their sexual orientation.

The DoJ, on the other hand, has taken a nearly diametrically opposed stance on the issue. During the Obama Administration, the DoJ backed the EEOC and issued statements to public schools that trans students were protected under federal civil rights law and that schools needed to let those students use bathrooms aligned with their gender identity.

Several states brought lawsuits over the statement, declaring it a misinterpretation of federal law. Under the Trump administration and Jeff Sessions the DoJ made a complete about face on the issue and announced that they  would be withdrawing from defending all these lawsuits.

Even beyond this refusal to pursue the issue, the current DoJ has actively challenged the EEOC’s approach. Even in the Altitude Express case the DoJ went out of its way to file briefs taking the position that Title VII does not protect against discrimination based on sexual orientation. The EEOC has taken the opposite stance in this case, sticking to its guns from the last half decade.

What Does This Case Mean?

The split here is a deep one, the Circuit Courts don’t agree with each other, the states don’t agree with each other, even the federal government can’t agree with itself–this is the exact sort of case which the Supreme Court should be hearing and making a final rule to remove ambiguity.

However, this is a tricky time in the Supreme Court. With an issue like this, the Court is so close that it is almost impossible to guess how it will rule at this point.

The determination will set decades of precedent of not protecting people based on sexual orientation against a trend of the last decade towards supporting these protections under the law.

It will set the conservatives and traditionalists among the Supreme Court against those who interpret the law as a more living entity. It would be shocking if, regardless of the way the Court rules, the final tally wasn’t 5 to 4.

No Matter What Happens, The Supreme Court Will Certainly Not Go Far Enough

The specific point the Supreme Court will rule on is exclusively whether Title VII encompasses sexual orientation. They are unlikely to rule on gender identity and will certainly not reach so far as to make sexual orientation an actual protected class–even the EEOC hasn’t gone so far as to make this argument. It is even likely that making such a ruling is beyond the scope of what the Supreme Court can properly rule on in general.

Where LGBT status made a protected class, like race or gender, it would be an enormous step in protection across the board. However, to move beyond classifying sexual orientation and gender identity as sex-based discrimination, there would almost certainly need to be a Congressional Act adding both to the list of protected classes in Title VII.

As it stands, a bill of this nature is extremely unlikely to make its way through Congress.  Both sexual orientation and gender identity fit the mold of historic protected classes quite well.

Courts have historically looked at three elements when forming a new protected class:

  1. A long history of discrimination;
  2. Economic disadvantages; and
  3. Immutable characteristics.

Both sexual orientation and gender identity unarguably qualify on the first two elements.

The LGBT community has faced discrimination (economic and otherwise) and hate crimes since the U.S. became an independent nation. After the American Revolution, same-sex relationships were a felony in the United States.

Currently, 68% of LGBT persons report discrimination in employment and 16% of all reported hate crimes are committed against LGBT persons. This same discrimination in the workplace shows the economic disadvantages the LGBT community faces.

Some argue that orientation or gender identity are not immutable, despite substantial evidence to the contrary. Studies on the issue have found that sexual orientation and gender identity are either genetic, or influenced by both genetics, hormones, and environmental influences.

Either way, sexual orientation and gender identity are not something chosen like a passing fad, but fundamental parts of what makes up a human being.

For now, the Supreme Court holds in its hands what could very well be a landmark decision on LGBT rights–even if it doesn’t go as far as the community needs. This is a case to keep an eye on, it could fundamentally change the rights of millions of U.S. citizens and the obligations of employers across the nation.

Jonathan Lurie is a Founding Partner of The Law Offices of Lurie and Ferri (Contact Info). He primarily handles business law, employment law, and intellectual property issues, but works with all types of civil matters. He is a Vice-Chair of the Sports and Entertainment Interest Group of the California Intellectual Property Section and has won awards for his knowledge of intellectual property, start-up business issues, and California civil procedure. 

Jonathan Lurie


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