On Monday, for the second time in less than a year, a federal appeals court ruled that Title VII forbids sexual orientation discrimination because it is a form of sex discrimination. This time, in Zarda v. Altitude Express, Inc. the Second Circuit overturned decades of precedent and ruled that Title VII’s ban on discrimination “because of . . . sex” encompasses discrimination based on sexual orientation. The decision is also an apparent rebuke of the position taken by the United States Department of Justice (contrary to the Equal Employment Opportunity Commission’s position) that sexual orientation discrimination was never intended to by Congress to be covered by Title VII. The issue is almost certainly headed to the Supreme Court in its next term.
In a carefully reasoned but ultimately restrained opinion the Seventh Circuit held that Title VII does not prohibit discrimination in employment on the basis of sexual orientation. While declining to become the first circuit court to extend Title VII to sexual orientation claims, the court acknowledged at length the persuasive force of a recent EEOC administrative decision and similar district court rulings noting the logical fallacy of enforcing Title VII’s protections against discrimination on the basis of gender nonconformity while permitting sexual orientation discrimination in the workplace to continue.
This week, the U.S. Equal Employment Opportunity Commission filed its first lawsuits alleging sexual orientation discrimination under Title VII against employers in Pennsylvania and Maryland. In both cases, the EEOC seeks compensatory and punitive damages, as well as injunctive relief. The lawsuits are the latest step by the Commission to confirm its view that “sex” discrimination under Title VII encompasses discrimination based on sexual orientation.
In a sweeping decision, the U.S. Equal Employment Opportunity Commission found that Title VII prohibits sexual orientation-based discrimination. Although the statute does not explicitly include sexual orientation as a protected class, the statute does list “sex,” and the EEOC concluded “sexual orientation is inherently a ‘sex-based consideration,’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.”