March 12, 2018—In the last two weeks, the LGBTQ community and its allies have celebrated two momentous rulings in favor of LGBTQ workplace equality. While Title VII of The Civil Rights Act of 1964 previously established the prohibition of discrimination on the basis race, color, religion, sex, or national origin, the new court rulings reinterpret Title VII, stating that discrimination against LGBTQ individuals is a form of sex discrimination.

On February 23, 2018, a New York-based Second Circuit Court of Appeals ruled in a 10-3 decision (Zarda v. Altitude Express) that sexual orientation is protected against discrimination in the workplace. This ruling stands directly in opposition to the U.S. Department of Justice, which filed a brief in July 2017 specifically stated that Title VII does NOT protect against LGBTQ workplace discrimination.

In another rebuff to the Department of Justice’s position, a second ruling on March 6, 2018 by Cincinnati-based Sixth Circuit Court of Appeals established that Title VII does, indeed, protect transgender workers from discrimination because “anti-trans discrimination is inherently sex based.”

Though these rulings do not explicitly add sexual orientation and gender identity to the characteristics protected in Title VII, they reinterpret the meaning of sex discrimination and contend that LGBTQ discrimination is one of its manifestations.

Conflicting Interpretations at the Federal Level

As recently as October 2017, Attorney General Jeff Sessions issued an official memo stating that Title VII does not protect transgender employees from workplace discrimination.

The Second Circuit Court’s ruling is significant, both because it is in conflict with the Administration, and it is the most recent ruling to agree with a more LGBTQ inclusive interpretation of Title VII.  The first to agree was the Chicago-based Seventh Circuit Court of Appeals in April 2017 (Hively v. Ivy Tech Community College of Indiana), which affirmed that LGBTQ employees are protected from workplace discrimination under Title VII.

Perhaps more significantly, the U.S. Government typically agrees on the application and interpretation of various U.S. laws. However, even within the U.S. Government, different agencies disagree on this matter.  For example, since 2015 the Equal Employment Opportunity Commission (EEOC), a federally authorized and independent agency, has maintained the interpretation that Title VII does protect LGBTQ persons from employment discrimination.  According to its website: “The EEOC interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation.  These protections apply regardless of any contrary state or local laws.”

The argument from the Trump Administration in both cases is that Title VII was not envisioned or written by Congress to expressly identify sexual orientation or gender identity. The Administration claims that merely that “sex” is protected.  Second Circuit Judge Robert Katzmann wrote in the opinion, even though Congress had not directly or specifically called out LGBTQ bias in the original construction of Title VII, laws “often go beyond the principal evil to cover reasonably comparable evils.”

Both LGBTQ advocacy groups and the EEOC have argued that sexual orientation is a function of gender, so legitimately falls under the protected category of sex.  Additionally, the U.S. Commission on Civil Rights (USCCR) issued a report in November, 2017, “Working for Inclusion: Time for Congress to Enact Federal Legislation to address Workplace Discrimination Against Lesbian, Gay, Bisexual, and Transgender Americans,” in which it recommended:

“Federal agencies should issue and—where relevant—reaffirm specific guidance for federal and private employers outlining protections for LGBT individuals in the workforce, including specifically enumerating protections for transgender persons; federal agencies should also collect workplace discrimination data about LGBT employees.”

The Road Ahead

As stated in previous O&E Briefs and other O&E materials, we noted that 28 states still have laws on the books that allow an employer to fire someone for being gay and in 30 states for being transgender. These cases continue to be battled out in the lower courts.  The results of these latest Circuit Court decisions may inform the direction of the Supreme Court’s deliberative process in and final ruling in the Masterpiece Cake Shop v Colorado Civil Rights Commission case, expected at the end of the Court’s term in June 2018.

As federal agencies continue to resolve their conflicting interpretations, continue to stay informed about recent court decisions and how your LGBTQ employees may be affected. Furthermore, continue to reaffirm that your company believes in the right to live openly, free from discrimination based on sexual orientation and gender identity, and ensure your policies are reflective of those values. Companies like yours, especially those operating in less LGBTQ-friendly areas, can have incredibly positive life impacts of LGBTQ individuals who would otherwise be unprotected.

For more information, contact Out & Equal’s Government Relations and Research Team:

Karen Irish
Government Relations Manager

Madelyn Gelpi
Research Manager

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