Dept. of Justice Opposes the EEOC in a Gay Discrimination Lawsuit

In Zarda et al. v. Altitude Express d/b/a Skydive Long Island et al., pending in the Second Circuit Appellate Court, the plaintiff filed suit against his former employer, alleging that he was fired due to a customer complaint that he disclosed his sexual orientation.

The district court dismissed the complaint pursuant to the 2nd Circuit’s holding in Simonton v. Runyan, 232 F.3d 33 (2000), holding that Title VII does not proscribe sexual orientation discrimination.

The Second Circuit upheld the trial court’s dismissal. Subsequently, it granted en bancreview of the case in order to reconsider the panel’s dismissal decision. Likely, this was due in part to the fact that sexual orientation discrimination claims under Title VII are being pursued in multiple circuits, with varying results. For example, in March 2017 in Evans v. Ga Reg’l Hosp, 850 F.3d 1248, the Eleventh Circuit held that discharge of an employee because of their sexual orientation is not prohibited under Title VII. Contrast that with Hively v. Ivy Cmty. College of Ind., 853 F.3d 339, where in April 2017, the Seventh Circuit held that sexual orientation discrimination is prohibited under Title VII.

The Second Circuit invited the EEOC to submit an amicus brief concerning the sexual orientation discrimination under Title VII issue. Unsurprisingly, the EEOC encouraged the court to overrule Simonton, arguing that the distinction between gender non-conformity claims and sexual orientation discrimination claims is unworkable. The EEOC also argued that sexual orientation discrimination is inextricably linked to gender, involves gender-based discrimination due to whom a person associates with, and is linked to gender stereotypes and non-conformity, all of which is gender bias covered by Title VII.

The Department of Justice, in spite of the lack of an invitation, crashed the case and filed an amicus brief taking the opposite view of the EEOC – that Title VII does not cover discrimination on the basis of sexual orientation. The DOJ argued that sexual orientation cannot be tied to gender discrimination, as firing a person for being gay is not the same as firing the person because of their gender. The DOJ also argued that in spite of societal changes concerning discrimination due to sexual orientation, there has been no attempt to amend Title VII to include sexual orientation as a protected class, and this should be left to Congress.

It is unusual to see government agencies opposing each other on Title VII cases. However, sexual orientation discrimination is a hot topic issue, and has become a political issue. Given this development, coupled with the split in the circuits, it is likely that this issue will make it to the Supreme Court sometime in the near future.