On July 26, 2017, the Department of Justice filed an Amicus Brief in the United States Court of Appeals for the Second Circuit taking the position that Title VII of the Civil Rights Act of 1964 does not ban employment discrimination based on sexual orientation. The Equal Employment Opportunity Commission, which is the primary government agency that enforces Title VII, takes the opposite position that discrimination based on sexual orientation is covered under the federal law.

In Zarda v. Altitude Express, a skydiving instructor was fired shortly after a customer complained that he revealed he was gay during a skydiving jump. The EEOC argues that Title VII does prohibit discrimination based on sexual orientation, since the discrimination involves (1) impermissible sex-based considerations, (2) gender-based associational discrimination, and (3) sex stereotyping. The EEOC’s brief cites a recent 7th Circuit en banc decision finding that sexual orientation discrimination is a form of sex discrimination. An amicus brief supporting the EEOC’s position was also filed by a large group of corporations, which included Microsoft and Google.

In contrast, the DOJ argued that the plain meaning of the Title VII statute, and the long history of precedent, demonstrate that sexual orientation is not covered under the statute. The DOJ argues that the question of whether Title VII covers sexual orientation is not a matter of policy, and that any efforts to the amend Title VII’s scope should be directed to Congress.

Until recently, Courts often held that Title VII did not protect against employment discrimination based on sexual orientation. However, the EEOC and other federal courts have begun to hold that sexual orientation is a prohibited basis under the statute as another form of sex discrimination. An employee can file a discrimination charge with the EEOC based on sexual orientation, as the EEOC relies on its EEOC administrative decision, Baldwin v. Foxx, EEOC Appeal No. 0120133080, 2015 WL 4397641 (July 16, 2015), and holds that sexual orientation discrimination violates Title VII.

Thatcher Zavaro & Mani regularly handles discrimination cases on behalf of businesses and employees. Please contact us for more information.