Does Title VII Protect against Employment Discrimination Based on Sexual Orientation?

Most Americans are aware that Title VII of the Civil Rights Act of 1964 prevents discrimination by employers against employees “because of such individual’s race, color, religion, sex, or national origin.”  In a highly-anticipated decision, the Second Circuit Court of Appeals, which covers several northeastern states, recently overturned its own precedent and became the second federal appellate court to find that Title VII protects individuals who are discriminated against because of their sexual orientation.  In Zarda v. Altitude Express, Inc., Docket No. 15‐3775 (2d Cir. Feb. 26, 2018), the court found that, while Congress never intended that Title VII expressly cover bias against same-sex oriented employees, laws “often go beyond the principal evil to cover reasonably comparable evils.”  The court held “sexual orientation discrimination is motivated, at least in part, by sex and is thus a subset of sex discrimination.”  The court reasoned that a woman who experiences an adverse employment action because she is attracted to women is experiencing discrimination based on sex when a man who is attracted to women would not experience similar treatment.

In an interesting twist, the Administration came down on both sides of the issue.  The Equal Employment Opportunity Commission and the Department of Justice each filed amicus curiae briefs, with the former supporting a reading of Title VII that includes sexual orientation protections and the latter opposing.

It is difficult to say what this means for Virginia companies.  While the Fourth Circuit, which includes Virginia, has maintained that Title VII does not include sexual orientation protections, it appears that the national trend may be moving the other way.  It is difficult to predict what the current Supreme Court will do if it takes up the issue, but with a split in the circuits, it appears that it is only a matter of time before the high court will have to address the matter.  While national opinion seems to be moving toward a more inclusive view of Title VII, the current Supreme Court leans a bit more conservative.  Earlier this year the Supreme Court refused to even take up a challenge to a controversial Mississippi law that allows individuals to refuse service to same-sex marriages or same-sex-oriented individuals if doing so violates their religious principals or “moral convictions.”  Until the Supreme Court does resolve the matter, employers should tread with care when dealing with matters that could involve claims of sexual orientation discrimination.

Jeff Wilson is an attorney at Pender & Coward who focuses his practice in the areas of employment law and business litigation.