Legal Insider: Sexual Orientation Discrimination — Dueling Government Positions

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Plaza America that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

In an unusual departure from the previous administration, the Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) are taking opposing positions on sexual orientation discrimination in a case that is currently pending before the U.S. Court of Appeals for the Second Circuit.

In Zarda v. Altitude Express (Case No. 15-3775), Donald Zarda, who was a skydiving instructor, was terminated by his employer after he disclosed his sexual orientation to a female customer, who then complained that he had done so. The allegation in the underlying lawsuit was that the employer did not punish other instructors who openly discussed their heterosexual orientation with customers.

At issue is whether sexual orientation discrimination is discrimination based on sex. Basically, the semantics are being argued. Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” From the statute, the two conflicting government positions have emerged.

Dueling Government Legal Positions

Although the DOJ and EEOC are not parties in the case, both have filed legal briefs on the issue of whether sexual orientation discrimination is prohibited in the workplace.

The DOJ Legal Argument

The DOJ filed a brief arguing that it was not illegal to fire an employee based on his or her sexual orientation under federal law. The DOJ’s argument, from its brief, can be summarized as follows: “The term “sex” is not defined in Title VII, but in common, ordinary usage in 1964 — and now, for that matter — the word ‘sex’ means biologically male or female. As for the term “discrimination,” the Supreme Court has held that Title VII requires a showing that an employer has treated “similarly situated employees” of different sexes unequally. Title VII does not proscribe discrimination because of sexual orientation because the term ‘sex’ in Title VII refers only to membership in a class delineated by gender.”

The EEOC Legal Argument

The EEOC filed their brief arguing that the Civil Rights Act of 1964 protected workers from sexual orientation discrimination. The EEOC’s position can be summarized as follows: “In passing Title VII, Congress made the “simple but momentous announcement” that sex, like other protected characteristics, is “not relevant” to employment decisions; thus in making such decisions, employers “may not take gender into account.” . . . Sexual orientation discrimination requires the employer to take the employee’s sex into account. In short, an employer cannot discriminate against an employee based on that employee’s sexual orientation without taking the employee’s sex into account — precisely what Title VII forbids.”

Where these Dueling Government Positions Leave the Public

As a result of the Zarda case, the DOJ and the EEOC are essentially opposing each other’s legal position on sexual orientation discrimination in the same case. The DOJ is not a party to the case, which is why it is significant that it chose to interject itself into this debate. The U.S. Court of Appeals for the Second Circuit will decide whose legal position is right.

For now, individuals with sexual orientation discrimination claims should pursue them as usual either through the EEOC or in the courts. The EEOC position is settled law for federal employees. The DOJ’s new position will not likely have an effect, if at all, until the courts finish ruling on the issue. A decision may ultimately be made by the U.S. Supreme Court as to whether individuals are protected from sexual orientation discrimination. Regardless of politics, it is this author’s opinion that it is very likely that the EEOC’s position will ultimately prevail. The next step in the Zarda case is for the DOJ, the EEOC, the plaintiff, the defendant, and the Lambda Legal Defense Fund to make oral arguments in New York City, NY, on September 26, 2017.

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