2nd Circuit: Title VII Covers Sexual Orientation – 5th Circuit and Most Circuits Still Say It Does Not

Last month the U.S. Court of Appeals for the 2nd Circuit in New York ruled that Title VII of the Civil Rights Act of 1964 — the federal law that bans sex discrimination — also applies to claims of discrimination on the basis of sexual orientation.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. The U.S. Equal Employment Opportunity Commission (EEOC) takes the position that Title VII’s prohibition of sex discrimination extends to LGBT applicants and employees and has obtained about $6.4 million in monetary relief in voluntary resolutions of LGBT discrimination charges under Title VII since data collection began in 2013.

In the case of Zarda v. Altitude Express, Inc., the plaintiff, a skydiving instructor, brought a claim of sex discrimination on the grounds that he was “fired from his job at Altitude Express, Inc. because he failed to conform to male sex stereotypes by referring to his sexual orientation.”

In a 10-3 decision, the 2nd U.S. Circuit Court of Appeals ruled in favor of the plaintiff, stating that

“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.”

With this decision, the 2nd U.S. Circuit Court of Appeals becomes the second appeals court to rule that Title VII covers discrimination based on sexual orientation. In April 2017, the 7th Circuit Court of Appeals in Chicago ruled in the case Hively v. Ivy Tech Community College of Indiana in favor of the plaintiff, an openly gay part-time professor who was repeatedly denied full-time employment. The majority decision, in that case, states that

“… a policy that discriminates on the basis of sexual orientation…is based on assumptions about the proper behavior of someone of a given sex … Hively’s claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing. The employers in those cases were policing the boundaries of what jobs or behaviors they found acceptable for a woman.”

Now that two circuit courts have ruled in favor of Title VII protecting employees on the basis of sexual orientation, we could soon see this issue coming before the U.S. Supreme Court.

As it stands now, the 5th Circuit (governing Texas) and all other Appellate Circuits in the United States disagree with the 2nd Circuit.  

Further, the Texas Labor Code has never been interpreted to protect Sexual Orientation as a protected class.  Until the Texas Legislature changes Chapter 21 of the Texas Labor Code to include Sexual Orientation, it is unlikely that the Courts will expand beyond the black-letter statute.    

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