Protections for LGBT Employees Under Title VII
Protections for LGBT Employees Under Title VII
Two thousand eighteen has brought about big legal victories for LGBT (Lesbian, Gay, Bi-sexual, Transgender) employees. Federal law, under Title VII of the 1964 Civil Rights Act, bans sex bias in the workplace.1 Historically, many courts around the U.S. have refused to acknowledge that Title VII’s protections extend to gay individuals as well as transgender individuals. See, e.g. Jameka K. Evans v. Georgia Regional Hospital. 2 Those against extending protection to gay and trans individuals have largely focused on Congress’ intent when first adopting Title VII more than 50 years ago. This reasoning has been highly condemned over the years and LGBT advocate groups have argued extensively in favor of expanding federal law to protect the rights of gay and transgender individuals. Those who have been long fighting for LGBT protections in the workplace have found some solace in 2018 through two monumental cases, Zarda v. Altitude Express and EEOC v. R.G.3 On February 26, 2018, the 2nd Circuit U.S. appeals court ruled, in a 10-3 decision, that Title VII of the 1964 Civil Rights Act, which bans sex bias in the workplace, also extends to protect gay employees.4 The case that brought about this decision is Zarda v. Altitude Express. In 2015, Donald Zarda, a sky-diving instructor, sued a former employer after he was terminated for informing a client about his sexual orientation.5 In 2014, the District Court granted summary judgment for the Defendants on the grounds that Zarda could not actually prove he was 1 Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq. 2 Evans v. Ga. Reg'l Hosp., 850 F.3d 1248 (11th Cir. 2017) 3 Zarda v. Altitude Express, Inc., 2018 U.S. App. LEXIS 4608, 2018 WL 1040820 (2d Cir. N.Y. February 26, 2018); EEOC v. R.G., 2018 U.S. App. LEXIS 5720, 2018 FED App. 0045P (6th Cir.) 4 Zarda, 2018 5 Id. at 76,79 discriminated against on the basis of sex.6 Zarda passed away and his estate appealed the prior decision of the U.S. District Court for the Eastern District of New York. The 2nd Circuit Court of Appeals over turned the district court and ruled in favor of Zarda.7 In the opinion, Judge Robert Katzmann stated that laws “often go beyond the principal evil to cover reasonably comparable evils.”8 Judge Katzmann used the same words that Justice Scalia used when he ruled on the 1998 Supreme Court case, Oncale v. Sundowner Offshore Services. 9 The Oncale case created precedent for cases involving sexual orientation in relation to Title VII. In Oncale, the male plaintiff was being sexually harassed by other male employees and brought suit under Title VII on the bases that Title VII protects against sex bias. 10The opposing side argued how could this claim be brought under the “sex bias” language of Title VII if both parties are of the same sex.11 The District Court agreed and held that there was no cause of action under Title VII. The 5th Circuit affirmed the District Court’s opinion, nonetheless; The Supreme Court ruled that, under Title VII, same-sex harassment is sex discrimination.12 Although the Oncale decision stated that same-sex harassment is sex discrimination, it was the 7 th circuit court that took “sex-orientation” a step further when they became the first federal appellate court to render a decision which stated that sex, under title VII, includes sexual orientation. In the 2017 case, Kimberly Hively v. Ivy Tech Community College, a part-time lesbian professor was denied full-time employment and did not have her teaching contract 6 Id. at 12 7 Id. at 63 8 Id. at 26 9 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998). 10 Id. 11 Id. 12 Id. at 118 renewed by her former employer, Ivy Tech Community College.13 Hively filed a complaint with the U.S. District Court for the Northern District of Indiana claiming Ivy Tech discriminated against her based on her sexual orientation, thus violating Title VII. The District Court ruled that “sex discrimination” under Title VII does not extend to cover “sexual-orientation” discrimination. On appeal, the 7th Circuit reversed the decision of the District Court and held that employment discrimination based on sexual orientation is unlawful under federal civil rights law.14 The 7th and 2nd U.S. Circuit Court of Appeals are the only courts that have come to the decision that Title VII does, in fact, ban bias based on sexual orientation in the workplace. Zarda v. Altitude Express overturned the 2nd Circuit precedent which ruled that discrimination based on sexual orientation was not protected under Title VII. Other Circuits have ruled against Title VII protecting employees from sex-orientation based discrimination. In Jameka K. Evans v. Georgia Regional Hospital the 11th U.S. Circuit Court of Appeals held that sexual orientation is not covered by Title VII protections.15 The Supreme Court refused to hear an appeal brought by the plaintiff in the 11th Circuit case. The DOJ takes the same stance as the 11th Circuit and does not agree that Title VII protects against discrimination based on sexual orientation. While the recent decisions of the 7th and 2nd Circuits have broadened the rights of gay employees, the recent decision of the 6th Circuit has broadened the rights of transgender employees. Prior to the 1989 Supreme Court decision in Price Waterhouse v. Hopkins, many 13 Hively v. Ivy Tech Cmty. College of Ind., 853 F.3d 339, 341, 2017 U.S. App. LEXIS 5839, *2, 130 Fair Empl. Prac. Cas. (BNA) 1, 101 Empl. Prac. Dec. (CCH) P45,770, 2017 WL 1230393 14 Id. 15 Evans, 2017 federal courts ruled against giving Title VII protections for transgender employees. 16In Price Waterhouse v. Hopkins, Ann Hopkins, a female employee of Price Waterhouse, was refused partnership at the company. Price Waterhouse procedures required existing partners to write comments on proposed partners. Hopkins received comments from male partners stating she was too masculine, her cursing was un-lady-like and she was more likely to attain partnership if she acted more feminine. The Supreme Court ruled that an employment decision based on one’s failure to conform to gender stereotypes is sex discrimination.17 The ruling in Hopkins opened the door for transgender employees to sue under Title VII through the sex stereotype theory. The 6th and 11th Circuits are the only circuits that have ruled that Title VII protects transgender individuals based on the sex stereotype theory. However, the 6 th Circuit’s recent decision in EEOC v. R.G further expands the protections of transgender individuals allocated through Title VII by ruling that a transgender employee doesn’t substantially burden an employer’s religious freedom and therefore it’s sex discrimination to fire an employee based on sex stereotypes.18 Most states do not have laws in place to protect LGBT employees against discrimination on the basis of sexual orientation or gender identity, and there’s still no federal legislation directly protecting LGBT employees. Nonetheless, the 2018 2 nd and 6th Circuit decisions are a huge stride for LGBT individuals fighting discrimination in the workplace. With the new Circuit rulings brought about in 2018, it’s only a matter of time before the issue of sexual orientation in relation to Title VII reaches the ears of the Supreme Court.