In a rare en banc decision, with just three of 13 judges dissenting, the 2nd Circuit Court of Appeals has ruled that Title VII of the Civil Rights Act does provide anti-discrimination protections based on one’s gender identity and sexual orientation.
The decision in Zarda v. Altitude Express essentially affirms the position of the Equal Employment Opportunity Commission (EEOC), which has long argued that Title VII does afford such protection. This is in contrast to the position taken recently by U.S. Attorney-General Jeff Sessions, who ordered his attorneys not to use the EEOC interpretation because the Civil Rights Act protects against discrimination based on one’s sex but does not explicitly include sexual orientation.
“Sexual orientation discrimination — which is motivated by an employer’s opposition to romantic association between particular sexes — is discrimination based on the employee’s own sex,” Judge Robert Katzmann wrote for the majority. The judge also addressed the objection that Title VII does not specifically mention sexual orientation by saying that laws “often go beyond the principal evil to cover reasonably comparable evils.”
One other circuit court has agreed with the 2nd’s opinion, and a third has taken the opposite position. Typically when a split exists among circuit courts, the issue lands before the Supreme Court for a final interpretation. With the addition of Trump nominee Neil Gorsuth, conservatives on the high court hold a 5-4 advantage, but Justice Anthony Kennedy has been known to side with the liberals on issues of life-style choice.
Advocacy groups lauded the decision. Said Masen Davis, CEO of Freedom for All Americans, in a statement:
“Today’s ruling is the latest victory affirming that employees should be evaluated only on their work ethic and job performance – not on who they are or who they love. Courts across America are increasingly in agreement that who a person loves has no impact on what they produce in the workplace, and no one should be singled out because of their sexual orientation.”