The U.S. Department of Justice (DOJ), under the Trump administration, recently argued that that Title VII of the Civil Rights act of 1964 does not protect workers from discrimination on the basis of sexual orientation. The DOJ and the Equal Employment Opportunity Commission (EEOC) had previously taken the position that Title VII’s language regarding discrimination “because of sex” included sexual orientation. However, in a brief for a U.S. Second Circuit Court of Appeals case deciding that same question, Zarda v. Altitude Express, the DOJ argued that Title VII’s prohibition of discrimination did not include sexual orientation. This position arguably puts the U.S. DOJ at odds with the U.S. Equal Employment Opportunity Commission (“EEOC”) on the issue.

In the Zarda case, an employee alleged that he was fired for his sexual orientation. The employee, a sky diving instructor, and as such would be attached to a customer on dives in order to properly release the parachute. The employee often mentioned his sexual orientation to female skydivers who were diving with their husband or boyfriend to “mitigate the awkwardness that might arise from the fact that he was strapped tightly to a woman.” After a customer complained, the employee was terminated and filed suit. The lower court and Second Circuit dismissed the case, but the full Second Circuit panel will now hear the case en banc.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. In recent years, there has been stream of litigation debating whether or not the “because of sex” language in Title VII applies to discrimination based on sexual orientation.

The U.S. Supreme Court in Price Waterhouse v. Hopkins (1989), ruled that sex stereotyping—punishing a worker for his/her failure to conform to gender norms—is a kind of sex discrimination and is illegal under Title VII. However, the U.S. Sixth Circuit Court of Appeal (Ohio) has declined to extend the Price Waterhouse rule to discrimination based on sexual orientation. Other federal appellate courts are split on the issue. A split amongst the federal appellate courts makes it more likely that the U.S. Supreme Court could one day resolve the issue.

It is unclear what ramifications this DOJ policy change will have on the EEOC’s position in the future. However, employers should be aware that the EEOC currently interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. The EEOC states that these protections apply regardless of any contrary state or local laws.

For more information on this topic, or with any employment law question, please feel free to contact an FHKAD attorney at (614) 221-1216.