Recently we discussed a pending lawsuit that may decide whether federal employment discrimination laws protect LGBT workers based on their sexual orientation. Title VII of the Civil Rights Act bans any form of discrimination in employment based on “sex.” But federal courts disagree as to whether “sex” automatically incorporates “sexual orientation.” The attorneys general of New York and two other states have now weighed in on the issue, arguing that it should.
Federal Law Needed to “Supplement” State Anti-Discrimination Efforts
The U.S. Second Circuit Court of Appeals has jurisdiction over all federal courts in New York, Connecticut, and Vermont. As we noted previously, the full Second Circuit recently agreed to rehear the case of Zarda v. Altitude Express, Inc. The estate of a now-deceased skydiving instructor alleges that he was fired from his job because he was gay. A three-judge panel of the Second Circuit ruled the estate could not proceed with a Title VII claim on that basis.
On June 26, New York Attorney General Eric T. Schneiderman, joined by his colleagues in the other Second Circuit states, filed a “friend of the court” brief supporting the estate's lawsuit. The brief expressly argues that “Title VII's bar on sex discrimination prohibits discrimination on the basis of sexual orientation.”
The attorneys general noted that under binding U.S. Supreme Court precedent, illegal sex discrimination encompasses any employer activity punishing an employee for “failure to conform to conventional gender roles.” For example, an employer cannot refuse to promote a female employee unless she acts “more femininely.” For similar reasons, the brief argued, Title VII must also be read to prohibit discrimination based on sexual orientation. After all, as another federal appeals court recently observed, homosexuality is the “ultimate case of failure to conform” to established gender stereotypes in modern America.
Although New York and the other Second Circuit states already protect LGBT employees at the state level, the attorneys general argued that Title VII jurisdiction is still necessary to “supplement” their efforts to “combat invidious discrimination.” Federal and multi-state employers are not subject to state laws, the brief noted, leaving their employees vulnerable without Title VII protection. And a Title VII claim also allows the Equal Employment Opportunity Commission (EEOC) to get involved, enabling it to “work in parallel and coordinate with state agencies to prevent, investigate, and remedy invidious discrimination.”
Supreme Court May Finally Get Involved
Overall, the attorneys general said that there are over 800,000 LGBT adults residing in their states. And studies have repeatedly shown these individuals continue to face “widespread and continuing employment discrimination.” Despite this, some federal courts continue to resist including such discrimination under Title VII.
The issue is likely to be decided by the Supreme Court at some point in the near future. Even as the Second Circuit reconsiders its position, the 11th Circuit Court of Appeals in Atlanta recently denied a similar effort. The Atlanta court said a security guard allegedly fired for being a lesbian could not pursue her federal employment discrimination claims. She has now asked the Supreme Court to hear her case.
In the meantime, LGBT workers still enjoy full civil rights protections under state and local laws in New York. If you have been the victim of any kind of employment discrimination due to your gender, race, age, or any other legally protected characteristic, you need to speak with a qualified New York employment law attorney. Call the Law Offices of Mahir S. Nisar to speak with a lawyer today.