- Federal law prohibits employers from discriminating against workers based on their sexual orientation, the 2nd U.S. Circuit Court of Appeals ruled in Zarda v. Altitude Express, Inc., No. 15‐3775 (Feb. 26, 2018).
- The court reached that conclusion with a 10-3 vote, overturning its earlier ruling in the case. The decision applies in Connecticut, New York and Vermont.
- The court said that sexual orientation discrimination is motivated, at least in part, by sex and is therefore a subset of sex discrimination, which is specifically outlawed by Title VII of the Civil Rights Act of 1964. Sex stereotyping has long been considered a form of sex discrimination and "because sexual orientation discrimination is predicated on assumptions about how persons of a certain sex can or should be," it's an impermissible basis for adverse employment actions, the 2nd Circuit said.
The ruling puts the 2nd Circuit in line with the 7th, while the 11th Circuit remains firmly in the opposing camp. The U.S. Supreme Court declined to take up the question in December when it refused to review the 11th Circuit's ruling. This further split may well eventually invite the High Court's review, and LGBTQ advocates continue to urge Congress to pass a law explicitly banning discrimination in the workplace based on sexual orientation and gender identity.
Meanwhile, the U.S. Equal Employment Opportunity Commission (EEOC) has maintained its position that Title VII does protect both sexual orientation and gender identity and continues to enforce that position (despite opposition from the Trump administration).
In light of the circuit split and the EEOC's enforcement actions, some attorneys are urging businesses to refrain from discriminating against applicants and employees based on their sexual orientation and to address harassment as they would for protected characteristics. The task of separating gender nonconformity from sexual orientation is an involved legal one; it's safer to add LGBT workers to your EEO policy now, some say, and avoid becoming a test case later.
One expert, however, has pointed out that employers should carefully think through the implications of doing so. Things written in your handbook could be construed as a contract, Mike Aitken, VP of government affairs at the Society for Human Resource Management, previously told HR Dive. This means that if there’s a violation, you could potentially be held liable for failing to take the same steps you would for other protected characteristics. You always want to think through whether those are the values that you live by, Aitken said; it can’t just be window dressing.