Is Sexual Orientation Covered Under Title VII? It Depends Upon Whom You Ask

On July 26, the Department of Justice filed a brief in a Second Circuit Court of Appeals case Zarda v. Altitude Express, Inc., considering whether Title VII prohibits employment discrimination based on sexual orientation.  Last August we shared with you an appeals decision from the EEOC in 2015 where the Commission held that an employer may not legally restrict his/her employee’s ability to use the restroom designated for the gender with which the employee identifies.  The EEOC further held that restrictions based on the gender listed on the employee’s birth certificate constituted disparate treatment.  More recently the Seventh Circuit in Hively v. Ivy Tech Cmty. College of Ind., agreed with the EEOC’s position, and held that, “it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex”.

In a stark departure from the EEOC and Seventh Circuit, the DOJ’s stance in their brief to the Second Circuit is that Title VII does not include discrimination based on sexual orientation. The DOJ does not opine about whether sexual orientation discrimination should be prohibited by statute, regulations, or employer action, but they do suggest that any efforts to amend Title VII’s scope should be directed to Congress rather than the courts.  The DOJ cites sixty-two instances since 1974 where Congress has rejected proposals to prohibit discrimination in employment based on sexual orientation.

The DOJ’s brief creates some confusion about the federal government’s position regarding the interpretation of Title VII as it relates to sexual orientation discrimination, and potentially creates uncertainty in the workplace for employers. Ultimately, the United States Supreme Court or Congress will have to resolve this issue.

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