Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees or job applicants on the basis of “sex.” Last year, the U.S. Second Circuit Court of Appeals here in New York City held that sex discrimination under Title VII included discrimination based on sexual orientation, as well. This put the Second Circuit in conflict with a number of other federal appeals courts, and now the U.S. Supreme Court is prepared to address the matter once and for all.
Justices Will Review New York Court's Decision
On April 22, the Supreme Court announced it would review the Second Circuit's decision and two other cases involving LGBT discrimination:
- The Second Circuit case, Zarda v. Altitude Express, Inc., involves a now-deceased skydiving instructor who was allegedly fired after telling customers he was gay. The Second Circuit held the estate could proceed with a Title VII claim, explaining that “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.”
- In contrast, the Atlanta-based Eleventh Circuit Court of Appeals held in Bostock v. Clayton County Board of Commissioners that Title VII did not cover discrimination “based on sexual orientation or gender stereotyping.”
- The final case, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, is from the Sixth Circuit in Cincinnati. A transgender woman was fired because, in the words of her ex-employer, she “was no longer going to represent himself as a man.” The Sixth Circuit held this qualified as discrimination “motivated, at least in part, by the employee's sex.”
The three cases stand to pit the federal government against itself. The U.S. Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing Title VII, considers LGBT discrimination a form of sex discrimination. Indeed, the EEOC brought the lawsuit that was the subject of the Sixth Circuit's decision. The Department of Justice, however, acting under the direction of President Donald J. Trump has taken the view that Title VII should be construed narrowly to exclude LGBT protections.
As the New York Times noted, the White House's view may prevail with the Supreme Court's current lineup, which includes two of President Trump's appointees, notably Justice Brett M. Kavanaugh, who replaced Justice Anthony M. Kennedy, a well-known “champion of gay rights,” according to the Times.
Speak with a New York City Sexual Orientation Discrimination Lawyer Today
Even if the Supreme Court ends up narrowing the scope of Title VII protections, LGBT workers in New York will still be protected by state and local laws. The New York State Human Rights Law explicitly prohibits discrimination on the basis of “sexual orientation.” The New York City Human Rights Law goes even further and protects “gender” and “gender identity.” Neither of these laws will be affected by the Supreme Court's ultimate decision, which is limited to the interpretation of Title VII.
So if you have been the victim of discrimination based on sex, sexual orientation, or gender identity and need advice from an experienced New York City employment attorney, contact the Nisar Law Group, P.C., today.