DOJ AND EEOC DISAGREEMENT ECHOES SPLIT OF AUTHORITY ON SEXUAL ORIENTATION DISCRIMINATION NATIONWIDE
October 30, 2018
By: David R. Stone
The United States Supreme Court will decide soon whether to review a case from the Second Circuit Court of Appeals regarding whether sexual orientation is a protected trait under Title VII of the Civil Rights Act. What makes this case interesting is that the Department of Labor and the Equal Employment Opportunity Commission have taken the opposite sides, echoing the deep split of authority among federal jurisdictions, states, and even local governments within the same state.
The case, Zarda v. Altitude Express, Inc., 883 F.3d 100 (2d Cir. 2018), involved a homosexual skydiving instructor who alleged he was terminated because of his sexual orientation. The Second Circuit initially held that Title VII does not protect sexual orientation, but on en banc review, the court reversed its opinion, holding that “sexual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.”
However, it also noted at oral argument that “[i]t’s a little bit awkward for us to have the federal government on both sides of the case.” Joseph Goldstein, Discrimination Based on Sex Is Debated in Case of Gay Skydiver, N.Y. Times (Sept. 26, 2017), https://www.nytimes.com/2017/09/26/nyregion/discrimination-based-on-sex-sky-diver-donald-zarda.html. Indeed, the EEOC took the position that sexual orientation was protected under Title VII. The Department of Justice claimed it was not.
The split among the federal executive bodies mirrors the split of authority among federal circuits. The Second and Seventh Circuits hold that sexual orientation is protected by Title VII, but they remain the only federal circuits to hold as such.
States are also widely split among their approaches to sexual orientation discrimination. Many states and local jurisdictions have enacted laws that expressly ban discrimination against sexual orientation. In the absence of some express law prohibiting sexual orientation discrimination, courts in some states have held that sexual orientation is a protected trait under those states’ discrimination laws. In other states, no statute, ordinance or court ruling bars discrimination on the basis of sexual orientation.
Thus, employers in each jurisdiction—sometimes even different cities or counties within the same state—face different standards. West Virginia, for example, has no state statute protecting sexual orientation as a trait, and the Fourth Circuit has held that Title VII does not protect sexual orientation. But, several counties and cities in West Virginia have passed local ordinances including Morgantown, Wheeling, Fairmont, Huntington, Kanawha County, and others. This means that employers with offices throughout West Virginia may face different consequences for the same actions that occur in various offices.
The United States Supreme Court is set to decide whether to review the Zarda case and potentially resolve the issue nationwide. The deepening split of authority created by the Second Circuit’s decision and the conflict among the Department of Labor and EEOC shed light on a need for clarity of the law, which may come soon if the Court decides to hear the case.