Last month, the Second Circuit Court of Appeals agreed to reconsider its decision in Zarda v. Altitude Express. The case involves a sky diver who claimed he was fired after disclosing his sexual orientation to a customer. A three-judge panel of the court, relying on a Second Circuit decision in a prior case, found that the prohibition on sex discrimination in Title VII of the Civil Rights Act of 1964 does not protect against discrimination based on sexual orientation. The Second Circuit will hear oral arguments in the case in September.
The National Women’s Law Center and the ACLU, representing 14 civil and women’s rights organizations, filed an amicus brief urging the court to recognize federal civil rights protections for LGBTQ individuals in the workplace. The brief explains how the Supreme Court’s interpretation of Title VII’s prohibition against sex discrimination has evolved over the years to encompass a broader understanding, which includes discrimination based on sexual orientation, given that such discrimination is based both on an employee’s sex and is based on gender stereotypes.
The EEOC, one of the national’s most important civil rights agencies tasked with enforcing Title VII, submitted an amicus brief at the court’s invitation, also arguing that sexual orientation discrimination is sex discrimination under Title VII. In an unusual turn of events, the Department of Justice filed an amicus brief making an opposing argument.
The following is a statement by Emily Martin, Vice President for Workplace Justice:
“The Department of Justice’s assertion in an important civil rights case that the law does not protect individuals from employment discrimination on the basis of sexual orientation, coupled with President Trump’s ban on transgender individuals in the military, is an incredible assault on LGBTQ equality.
“Discrimination based on sexual orientation is sex discrimination in violation of Title VII. For years, harmful generalizations about men and women based on sex or gender stereotypes were used to exclude women from jobs. Similar stereotypes also harm LGBTQ individuals at work. The law is clear that expectations and stereotypes based on gender should have no place in employment decisions.
“Our leaders should be working to ensure equal treatment for LGBTQ people in every workplace, instead of sanctioning discrimination and harassment.”.
The National Women’s Law Center is a non-profit organization that has been working since 1972 to advance and protect women’s equality and opportunity. The Center focuses on major policy areas of importance to women and their families including economic security, education, employment and health, with special attention given to the concerns of low-income women. For more information on the Center, visit: www.nwlc.org.