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to Section One | to Arts & Entertainment
posted Friday, March 2, 2018 - Volume 46 Issue 09
Title VII protects LGBT workers, 2nd Circuit Court says
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Title VII protects LGBT workers, 2nd Circuit Court says

by Mike Andrew - SGN Staff Writer

The 2nd US Circuit Court of Appeals ruled on February 26 that Title VII of the Civil Rights Act does indeed protect LGBT workers against discrimination on the job.

In doing so, it reversed its own precedent - established in 2000 and reaffirmed in 2005 - stating that the law's prohibition of sex discrimination did not apply to sexual orientation.

The court's ruling was also a rebuke to Donald Trump's attorney general, Jeff Sessions, who reversed the Obama-era view and argued that Title VII does not protect LGBT workers.

The court's decsion came in a suit filed by former Altitude Express skydive instructor Donald Zarda. According to court documents, Zarda sought to calm a visibly nervous female first-time customer by joking that she didn't have to worry about their close physical contact because he was '100% gay.'

The woman later told her boyfriend about the encounter, and he complained to the skydive school, which then fired Zarda in 2010.

Zarda complained to the Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing workplace nondiscrimination laws, which found that his employer had fired him for being Gay, in violation of Title VII.

The EEOC could not reach a settlement with Zarda's employer, however, and when the case went to trial, the trial court ruled against Zarda, relying on the 2nd Circuit's previous decisions that Title VII did not apply to sexual orientation.

Although Zarda subsequently died in a skydiving accident, the 2nd Circuit ruling vindicates his suit and upholds the finding of the EEOC.

Writing for the court in the 10-3 en banc decision, Chief Circuit Judge Robert Katzmann, a Clinton appointee, says that Zarda's estate is 'entitled to bring a Title VII claim for discrimination based on sexual orientation.'

'Zarda has alleged that, by 'honestly referr[ing] to his sexual orientation,' he failed to 'conform to the straight male macho stereotype,' Katzmann writes. 'For this reason, he has alleged a claim of discrimination of the kind we now hold cognizable under Title VII.'

In his decision, Katzmann lays out three separate ways in which sexual orientation discrimination is a subset of sex discrimination.

First, Katzmann says, sexual orientation 'is defined by one's sex in relation to the sex of those to whom one is attracted,' which makes it impossible to discriminate on the basis of sexual orientation without taking sex into account.

'In the context of sexual orientation, a woman who is subject to an adverse employment action because she is attracted to women would have been treated differently if she had been a man who was attracted to women,' Katzmann said. 'We can therefore conclude that sexual orientation is a function of sex and, by extension, sexual orientation discrimination is a subset of sex discrimination.'

In other words, Zarda would have kept his job as a skydiver but for the fact he was a man sexually attracted to other men. This is known as the 'but for' argument.

Second, Katzmann says that anti-Gay bias is based on assumptions and stereotypes about gender, which the US Supreme Court has ruled are unlawful motives for employment discrimination.

'Viewing the relationship between sexual orientation and sex through the lens of gender stereotyping provides yet another basis for concluding that sexual orientation discrimination is a subset of sex discrimination,' Katzmann writes. 'Specifically, this framework demonstrates that sexual orientation discrimination is almost invariably rooted in stereotypes about men and women.'

Third, Katzmann found that anti-Gay workplace discrimination is associational discrimination based on sex because the employer is making a judgment about whom an employee should have a relationship with.

'Consistent with the nature of sexual orientation, in most contexts where an employer discriminates based on sexual orientation, the employer's decision is predicated on opposition to romantic association between particular sexes,' Katzmann writes. 'For example, when an employer fires a gay man based on the belief that men should not be attracted to other men, the employer discriminates based on the employee's own sex.'

Joining Katzmann in the decision were Circuit Judges Peter Hall, Denny Chin, Susan Carney, and Christopher Droney. Circuit Judge Rosemany Pooler joined in the decision but rejected the 'but for' argument.

Four other judges on the 2nd Circuit - Dennis Jacobs, Robert Sack, Raymond Lohier, and Jose Carbranes - filed concurring opinions in the case that affirmed protections for Lesbain, Gay, and Bi workers under Title VII but reached that conclusion on the basis of different reasoning.

Each of the three states in the 2nd Circuit's jurisdiction - Vermont, Connecticut, and New York - already have state laws prohibiting workplace discrimination on the basis of sexual orientation. The Circuit Court's ruling adds additional protections for LGBT workers, because under Title VII, sex discrimination only needs be one motivating factor to meet the threshold for unlawful discrimination. The state laws, however, require it to be the only factor.

Victoria Lipnic, acting chair of the EEOC, praised the 2nd Circuit for the decision.

'Today, the 2nd Circuit became the second federal court of appeals to hold that Title VII provides legal employment protections for individuals based on their sexual orientation,' Lipnic said. 'The EEOC has advanced this legal interpretation for the past few years, and I commend the fine lawyering by the agency that contributed to today's decision. This is a generous view of the law of employment protections, and a needed one.'

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