Title VII of the Civil Rights Act of 1964, as amended, is the federal law that prohibits employment discrimination based on gender, race, national origin and color. Federal courts recently have had to rule on when the ban on gender discrimination encompasses discrimination involving sexual orientation.
So far, the results are mixed. The Second Circuit Court of Appeals in Zarda v. Altitude Express, Inc., on February 26, 2018, held that Title VII prohibits discrimination on the basis of sexual orientation as a subset of discrimination on the basis of sex. The Chief Judge as a basis for the decision wrote:
"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."
The Second Circuit decision follows upon the Seventh Circuit’s decision in Hively v. Ivy Tech in April 2017, which reached the same conclusion.
On the negative side is the Eleventh Circuit, which in Evans v. Georgia Regional Hospital held the exact opposite. There, the Court relied on a 1979 case and found that sexual orientation was not included within the scope of Title VII’s protection.
Undoubtedly, this conflict in the federal courts will be resolved by the U.S. Supreme Court.
Lebau & Neuworth attorneys are skilled in representing victims of employment discrimination. If you believe your rights have been violated in any way, contact Lebau & Neuworth at 888-456-2529 or lebauneuworth.com/contact-us.