Second Circuit Makes the Right Call on Title VII

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Wednesday, March 7, 2018

On February 23, Lesbian, gay and bisexual (LGB)  workers in Connecticut, New York, and Vermont moved one step closer to achieving equal employment opportunity. In the case of Zarda v Altitude Express, the Second Circuit Court of Appeals overruled prior precedent, aligning itself with the Seventh Circuit and the Equal Employment Opportunity Commission (EEOC), to hold that, “Title VII prohibits discrimination on the basis of sexual orientation... ‘because of sex.’ ” Title VII of the Civil Rights Act of 1964 is the federal statute prohibiting bias in the workplace because of “race, color, religion, sex or national origin.” In 2015, the Equal Employment Opportunity Commission sided with Zarda, arguing, “sexual orientation is inherently a ‘sex-based consideration;’ accordingly an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII.” In other words, discrimination based on sexual orientation is a form of illegal sex discrimination.

Since the 1970s, Legal Momentum has been a powerful critic of sex stereotyping—a form of sex-based discrimination firmly prohibited under the Supreme Court’s interpretation of Title VII.  As amici curiae in Price Waterhouse Coopers v. Hopkins, a landmark Supreme Court decision prohibiting sex stereotyping as a form of sex discrimination, Legal Momentum submitted extensive social science research to show that “Assumptions based on the sex of the individual constitute intentional discrimination in its classic form.” Legal Momentum further argued, “This is true regardless of the precise nature of the sex-based assumptions, which have taken many forms as the cases demonstrate. Title VII forbids employment decisions that are so tainted.” Joining other women’s rights advocates, Legal Momentum has worked to extend this pivotal victory to argue that discrimination against LGB workers is discrimination “because of sex” and that sexual orientation discrimination arises from prohibited sex-role stereotyping. The Second Circuit’s decision to change directions validates Legal Momentum’s longstanding position that any manifestation of sex stereotyping in an employment setting constitutes sex discrimination and is a barrier to equal employment opportunity.

The logic of the Second Circuit’s finding is both gratifying and, to the same-sex loving community, perhaps obvious. The court accepted the argument that if an employer discriminates against an employee because of sexual orientation, it is inherently taking into account the employee’s sex. This type of discrimination targets employees who do not conform to a “heterosexuality mandate”— the “one man, one woman” prescription that coercively organizes romantic coupling into opposite sex pairs. The court found that such actions are discrimination “because of….sex”, because, if sex were generally unknown and unknowable to the outside eye, employers could not distinguish heterosexually aligned employees from employees aligned in same-sex relationships.

The Second Circuit also agreed that Zarda was subject to “associational discrimination.” In the 1967 Supreme Court case of Loving v. Virginia, the Supreme Court foundthat adverse employment decisions made against an employee because of interracial association are race-based discrimination and thus prohibited under Title VII. Applying this same logic in the Zarda case, the Second Circuit concluded that discriminating against someone for associating with another person because of their sex, i.e., engaging in a romantic relationship with someone of the same sex, also constitutes associational discrimination.

Legal Momentum applauds this important decision. The case is one in a series of emerging challenges that reflect a new chapter of employment discrimination cases and seek to end sexual orientation discrimination in the workplace by building on critical victories won by the women’s rights movement.. Legal Momentum has signed onto amicus briefs in cases in the Missouri Supreme Court and Eighth Circuit, seeking to establish the same rights under state law and to convince the Eighth Circuit to follow the Second Circuit’s lead in overruling its outdated precedent on sexual orientation discrimination in the workplace and in schools. These decisions could significantly impact workers in Missouri and beyond, many of whom still must hide their sexual orientation at work. Other same-sex loving employees face routine adverse employment decisions because of their sexual orientation and non-conformity with sex stereotyping. The Second Circuit’s decision provides a template for these courts when interpreting both state and federal civil rights provisions. Legal Momentum encourages these courts to firmly include discrimination against LGB employees in the list of prohibited discriminations based on sex and sex-based generalizations.

Contributed by: 

Ane Mathieson