HCBA Lawyer Magazine Vol. 28, No. 5 | Page 47

changing tiDes on seXuaL orientation Discrimination wiDen spLit with 11th circuit
labor & Employment law Section
Chairs: Cynthia Sass - Law Offices of Cynthia Sass & Jason Pill - Phelps Dunbar LLP
R
© Can Stock Photo / ivelinradkov
ecent decisions by the
Second and Seventh
Circuits represent
changing tides across
the country on whether sexual
orientation discrimination is
prohibited by Title VII of the Civil
Rights Act of 1964. Previously,
courts in every circuit from the
First through the Eleventh held that
sexual orientation discrimination
was not protected under Title VII.
In February, however, the Second
Circuit in Zarda v. Altitude Express,
Inc., 883 F.3d 100 (2d Cir. 2018),
reconsidered en banc its prior
holdings that Title VII does
not prohibit sexual orientation
discrimination. In a 10-3 decision,
with eight separate opinions,
the court joined the Seventh
Circuit, the Equal Employment
Opportunity Commission, and
various district courts that have
interpreted Title VII to include
protections against sexual
orientation discrimination. These
decisions have widened the split
with the Eleventh Circuit.
Zarda involved a skydiving
instructor who was allegedly fired
after revealing to a client that he
was gay. The instructor alleged
his termination violated Title VII’s
gender protections, because his
sexual orientation meant that he
failed to conform to male sex
stereotypes. Citing to an evolving
legal framework for evaluating
M AY - J U N E 2 0 1 8
discrimination
Title VII claims,
is protected by
the Second
Title VII within
Circuit (in a
the last decade
plurality opinion)
and affirmed its
held that sexual
prior holding.
orientation
In Evans v.
discrimination is
a subset of sex
Georgia Regional
discrimination,
Hospital, 850
making it
F.3d 1248
the continuing trend of
impossible for
(11th Cir. 2017),
reversals and a growing
an employer to
the Eleventh
discriminate on
Circuit applied
split between the
the basis of
a strict textual
circuit courts will almost
sexual orientation
interpretation
certainly land this issue
without taking
of Title VII
sex into account.
to affirm its
before the supreme court.
Adding further
precedent that
interest to the
the prohibition
circuit split, the
of sex discrimi -
government itself
nation does
appears to be publicly divided
not encompass sexual orientation.
on this controversial issue. At the
The court put this issue to rest,
request of the court, the EEOC
for now, by denying Evans’ petition
filed an amicus brief arguing that
for en banc review. The Supreme
sexual orientation discrimination
Court also denied petition for a
falls squarely within Title VII’s
writ of certiorari.
prohibition of sex discrimination.
At least one other federal circuit
The Justice Department filed a
court is currently poised to weigh in
contrary amicus brief arguing that
on this issue, with the Eighth Circuit
Title VII did not extend to sexual
hearing arguments in a sexual
orientation discrimination and
orientation discrimination case this
urging the court to let Congress
month, Horton v. Midwest Geriatric
decide who should be protected
Management, No. 18-1104. The
under the law.
continuing trend of reversals and
A few months before the Zarda
a growing split between the circuit
courts will almost certainly land
decision, the Seventh Circuit, in
this issue before the Supreme Court.
Hively v. Ivy Tech Community College
In the meantime, despite changing
of Indiana, 853 F.3d 339 (7th Cir.
tides across the county, Florida
2017), reversed its prior holding
practitioners
and found that sexual orientation
have a clear
discrimination is protected by Title
directive from
VII because it is “common-sense
the Eleventh
reality” that it is impossible to
Circuit.
discriminate on the basis of sexual
orientation without discriminating
on the basis of sex.
Author:
The Eleventh Circuit remains
Raquel Ramirez
the only circuit that has considered
Jefferson - Phelps
whether sexual orientation
Dunbar LLP
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