Recent Federal Court Appellate decisions have changed the legal landscape surrounding the issue of LGBTQ rights. Over the last year the U.S. appeals courts have addressed the issue of whether Title VII of the 1964 Civil Rights Act prohibits discrimination on the basis of sexual orientation.
In Zarda v. Altitude Express, the 2nd U.S. Circuit Court of Appeals affirmed that the late Donald Zarda, a skydiving instructor, was unlawfully fired from Altitude Express for being gay.
Chief Judge Robert Katzmann wrote in his Zarda case opinion;
“Although sexual orientation discrimination is ‘assuredly not the principal evil that Congress was concerned with when it enacted Title VII, ‘statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils,’. In the context of Title VII, the statutory prohibition extends to all discrimination ‘because of … sex’ and sexual orientation discrimination is an actionable subset of sex discrimination’.”
With this 10-3 decision, the 2nd Circuit joined the 7th U.S. Circuit Court of Appeals, which last year ruled that Indiana educator Kimberly Hively had been fired from her position at school due to her sexual orientation which was found to be a form of sex discrimination prohibited by Title VII. Hively v. Ivy Tech Community College
These rulings from the Second and Seventh Circuits, along with positive developments in state legal systems may establish that existing civil rights laws can help to address the job discrimination faced by the LGBTQ community.
However, not all federal appellate decisions have supported the expansion of Title VII’s coverage to LGBTQ claims. In March 2017, in the case of Evans v. Georgia Regional Hospital, 11th U.S. Circuit Court of Appeals sided with the hospital, saying only the Supreme Court can declare that Title VII’s protections cover gay workers.
A three-judge panel of the 11th Circuit originally ruled against Evans in March 2018. At the time, Judge William Pryor, one of President Trump’s candidates for a Supreme Court nomination, opined that the decision belonged in Congress, which “has not made sexual orientation a protected class.” The full appeals court later refused to rehear the case.
These disparate rulings are particularly noteworthy since there is currently no federal legislation whose language protects LGBTQ employees from discrimination. Further, most states do not offer nondiscrimination protections on the basis of sexual orientation or gender identity.
The Supreme Court’s decision not to hear the case was a missed opportunity to resolve the schism in the circuit courts and “get a national answer” on the question of the scope of Title VII.
Even if the Supreme Court does not hear a Title VII case in the near future, it doesn’t appear that disputes regarding Title VII are not going to disappear.
Regardless of the outcome of future cases, the Hively, Evans and Zarda rulings are further evidence that LGBTQ people are asserting discrimination claims when they are discriminated against on the basis of their sexual orientation or gender identity.”
Regardless of the final disposition of the issue regarding the employment discrimination rights of the LGBTQ community, an employer can avoid costly litigation and possible negative decisions by treating all employees equally and documenting the basis for all employment decisions.
For further information to avoid litigation of employment claims or if you feel your rights have been violated please contact the Law Office of Phillip A. Austin; AzJusticeForAll.com;
215 N. Robson; Mesa, AZ 85201; 480-644-0506 (Office); 480-239-6816 (Cell)