On May 25, 2017, the Second Circuit Court of Appeals agreed to
rehear the case of Zarda v. Altitude Express Inc. to
determine whether Title VII of the Civil Rights Act of 1964
prohibits discrimination on the basis of sexual orientation.
Briefing is scheduled to conclude on August 9, 2017, and oral
argument is scheduled to occur on September 26, 2017. Notable among
the briefs filed is one endorsed by fifty employers and
organizations, including Microsoft, Google, CBS, and Viacom. Those
employers assert in their brief that declaring discrimination on
the basis of sexual orientation unlawful will benefit the
"bottom line" of companies, stating that the "U.S.
economy could save as much as $8.9 billion by protecting and
welcoming LGBT employees in the workplace."
The relevant facts of the Zarda case are straightforward: the
plaintiff, Donald Zarda, alleged that he was fired from his job as
a skydiving instructor because of his sexual orientation. The issue
in the case turns on an interpretation of the language in Title
VII. Title VII provides, among other things, that employers may not
discriminate against employees or applicants for employment on the
basis of "sex." Zarda argues that to discriminate on the
basis of sexual orientation is to discriminate on the basis of sex
within the meaning of Title VII.
Should the Second Circuit declare discrimination based on sexual
orientation unlawful under Title VII, it will not be the first
federal court of appeals to do so. In April 2017, the Seventh
Circuit declared discrimination based on sexual orientation
unlawful in the landmark case of Hively v. Ivy Tech Community
College. Additionally, since 2015, the United States Equal
Employment Opportunity Commission (EEOC) has maintained that
discrimination on the basis of sexual orientation is unlawful under
Title VII.
While employment discrimination on the basis of sexual orientation
(and gender identity) is prohibited under Massachusetts state law,
the First Circuit currently takes the position that Title VII (the
federal counterpart to the Massachusetts anti-discrimination
statute) does not proscribe discrimination based on sexual
orientation. However, it is quite possible that the First Circuit,
following the lead of the Second and Seventh Circuits, will revisit
the issue. Further, the current split amongst the federal circuits
may attract the attention of the Supreme Court.
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