Sexual Orientation Discrimination – The Current State of the Law

By John V. Berry, Esq., www.berrylegal.com

Our lawyers handle sexual orientation discrimination cases, representing employees who have been discriminated or faced retaliation as a result of sexual orientation discrimination. Until very recently, the ability to pursue sexual orientation claims under the Civil Rights Act look like fairly settled law.  However, there have been recent changes for employees to at least consider when considering the filing of such claims.

What is Sexual Orientation Discrimination?

Sexual orientation discrimination is generally defined as treating an individual differently, solely because of his or her real or perceived sexual orientation: lesbian, gay (homosexual), bisexual, or “straight” / heterosexual. As a result, employment discrimination may occur because of another individual’s perception of someone’s sexual orientation, whether that perception is correct or not. Sexual orientation discrimination may also occur as a result of an individual’s association with someone of a different sexual orientation. This article discusses sexual orientation discrimination in the employment law context.

Some of the ways in which sexual orientation discrimination claims can develop involve orientation harassment, such as others making inappropriate jokes or comments about sexual orientation or mannerisms or comments about sexual behaviors. Differential treatment is often an effect of sexual orientation discrimination, where an individual is not employed, promoted, or terminated as it relates to an individual’s sexual orientation.

The History of Sexual Orientation Discrimination Cases

The history of sexual orientation has undergone a more recent series of changes.  Prior to 2015, claims of discrimination based on sexual orientation had been rejected by the EEOC and the courts as not falling under the protections of the Civil Rights Act.  Then in July of 2015, the EEOC finally found, in Baldwin v. DOT/FAA, Appeal No. 0120133080 (July 2015), that claims of sexual orientation discrimination were in fact claims of sex discrimination that can be raised.  Through the Baldwin case, the EEOC noted that claims of sexual orientation discrimination should be processed as claims of sex discrimination.

The EEOC, in Baldwin, explained that:

When an employee raises a claim of sexual orientation discrimination as sex discrimination under Title VII, the question is not whether sexual orientation is explicitly listed in Title VII as a prohibited basis for employment actions. It is not. Rather, the question for purposes of Title VII coverage of a sexual orientation claim is the same as any other Title VII case involving allegations of sex discrimination — whether the agency has “relied on sex-based considerations” or “take[n] gender into account” when taking the challenged employment action.

Id. at 5-6.  Baldwin further stated that:

“Sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee’s sex. For example, assume that an employer suspends a lesbian employee for displaying a photo of her female spouse on her desk, but does not suspend a male employee for displaying a photo of his female spouse on his desk. The lesbian employee in that example can allege that her employer took an adverse action against her that the employer would not have taken had she been male. That is a legitimate claim under Title VII that sex was unlawfully taken into account in the adverse employment action.”

Id. at 7.

Following Baldwin, there has been other cases which have involved the issue of whether or not sexual orientation discrimination is covered under the Civil Rights Act.  There has also been a case of note, in Hively v. Ivy Tech Comm. College, No. 15-1720 (7th Cir. 2017).  In Hively, the U.S. Court of Appeals for the Seventh Circuit held that the Civil Rights Act applies to claims of sexual orientation discrimination. Since the Baldwin decision, sexual orientation claims have been treated by the EEOC as claims of sex discrimination. The debate over whether this should be the case has been revived recently by the DOJ in the Zarda case in the U.S. Court of Appeals for the Second Circuit.

The Hively court, in their reasoning, stated:

“[I]t has taken our courts and our society a considerable while to realize that sexual harassment, which has been pervasive in many workplaces (including many Capitol Hill offices and, notoriously, Fox News, among many other institutions), is a form of sex discrimination. It has taken a little longer for realization to dawn that discrimination based on a woman’s failure to fulfill stereotypical gender roles is also a form of sex discrimination. And it has taken still longer, with a substantial volume of cases struggling and failing to maintain a plausible, defensible line between sex discrimination and sexual-orientation discrimination, to realize that homosexuality is nothing worse than failing to fulfill stereotypical gender roles.

. . .

The compelling social interest in protecting homosexuals (male and female) from discrimination justifies an admittedly loose “interpretation” of the word “sex” in Title VII to embrace homosexuality: an interpretation that cannot be imputed to the framers of the statute but that we are entitled to adopt in light of (to quote Holmes) “what this country has become,” or, in Blackstonian terminology, to embrace as a sensible deviation from the literal or original meaning of the statutory language.”

Id. at 30-31.

The Zarda Case – 2017

In an unusual departure from the prior administration, the Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) are taking opposing positions on sexual orientation discrimination in a case that is currently pending before the U.S. Court of Appeals for the Second Circuit.  In Zarda v. Altitude Express (Case No. 15-3775), Donald Zarda, who was a skydiving instructor, was terminated by his employer after he disclosed his sexual orientation to a female customer, who then complained that he had done so. The allegation in the underlying lawsuit was that the employer did not punish other instructors who openly discussed their heterosexual orientation with customers.

At issue is whether sexual orientation discrimination is discrimination based on sex.  Basically, the semantics are being argued. Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” From the statute, the two conflicting government positions have now emerged.

Conflicting Government Legal Positions in Zarda

Although the DOJ and EEOC are not parties in the case, both have filed legal briefs on the issue of whether sexual orientation discrimination is prohibited in the workplace.  I have summarized the main arguments of each government agency, below:

DOJ’s Legal Arguments

The DOJ filed a brief arguing that it was not illegal to fire an employee based on his or her sexual orientation under federal law. The DOJ’s argument, from their brief, can be summarized as follows: “The term “sex” is not defined in Title VII, but in common, ordinary usage in 1964—and now, for that matter—the word ‘sex’ means biologically male or female. As for the term “discrimination,” the Supreme Court has held that Title VII requires a showing that an employer has treated “similarly situated employees” of different sexes unequally. Title VII does not proscribe discrimination because of sexual orientation because the term ‘sex’ in Title VII refers only to membership in a class delineated by gender.”

EEOC’s Legal Arguments

The EEOC filed their brief arguing that the Civil Rights Act of 1964 protected workers from sexual orientation discrimination. The EEOC’s position can be summarized as follows: “In passing Title VII, Congress made the “simple but momentous announcement” that sex, like other protected characteristics, is “not relevant” to employment decisions; thus in making such decisions, employers “may not take gender into account.” . . . Sexual orientation discrimination requires the employer to take the employee’s sex into account. In short, an employer cannot discriminate against an employee based on that employee’s sexual orientation without taking the employee’s sex into account— precisely what Title VII forbids.”

Where these Dueling Government Positions Leave the Public

As a result of the Zarda case, the DOJ and the EEOC are essentially opposing each other’s legal position on sexual orientation discrimination in the same case.  The DOJ is not a party to the case which is why it is significant that they chose to interject themselves into this debate. The U.S. Court of Appeals for the Second Circuit will decide whose legal position is right.

For now, individuals with sexual orientation discrimination claims should pursue them as usual either through the EEOC or in the courts. The EEOC position is settled law for federal employees. The DOJ’s new position will not likely have an effect, if at all, until the courts finish ruling on the issue. A decision may ultimately be made by the U.S. Supreme Court as to whether individuals are protected from sexual orientation discrimination. Regardless of politics, it is this author’s opinion that it is very likely that the EEOC’s position will ultimately prevail. The next step in the Zarda case is for the DOJ, the EEOC, the plaintiff, the defendant, and the Lambda Legal Defense Fund to make oral arguments in New York City, NY, on September 26, 2017.

Conclusion

It is our view that sexual orientation discrimination claims are clearly covered by civil rights statutes, both federally and in many individual states.  There is little doubt that the DOJ’s new legal arguments, be it in the Zarda case, or in another future case, will be cast aside as so many other unjustified forms of discrimination have in the past by the courts. If you need assistance with an employment discrimination matter involving sexual orientation discrimination, please contact our office at 703-668-0070 or at www.berrylegal.com to schedule a consultation. Please also like and visit us on Facebook at www.facebook.com/BerryBerryPllc.

Leave a Reply