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Opposite Sides taken by the Trump Administration and EEOC in Sexual Orientation Lawsuit

2017-07-28

In the case of Zarda and Moore, Jr. against Altitude Express, Inc., aka Skydive Long Island in the 2nd Circuit, the Trump administration has instructed the DOJ to file a friend-of-the-court brief recommending that the court find that employees are not protected from discrimination based on sexual orientation.  On the same case, EEOC also filed a friend-of-the-court brief recommending that the court take the opposite approach and hold that Title VII prohibits sexual orientation-based discrimination.

The case involves a skydiving instructor who alleged was fired because he was gay.  The appeals court initially held that federal law provided him no protections but has since agreed to reconsider its ruling.

Overview of the Briefs

For years, EEOC has interpreted Title VII to cover sexual orientation saying that it is a form of sex stereotyping which is a form of sex discrimination. 

Example:  A man who is fired for acting too feminine can be viewed as sex discrimination.  This assumes that the employer wouldn’t fire a woman for behaving in the same manner.

Opponents argue that Title VII does not prohibit employment practices that consider the sex of employees as long as they don’t impose different burdens on similarly situated members of each sex.

Example:  The sex of its employees is considered by the employer when maintaining sex-specific bathrooms.  This does not violate Title VII because the employer is not discriminating between members of one sex and similarly situated members of the opposite sex.

Currently, the 2nd Circuit and the 11th Circuit are re-evaluating their position on this matter; however, only the 7th Circuit currently agrees with EEOC.  However, it is important to note that many state and local laws prohibit sexual orientation discrimination. 

The foregoing has been prepared for the general information of clients and friends of Workplace Dynamics LLC and is not being represented as being all-inclusive or complete. It has been abridged from legislation, administrative ruling, agency directives, and other information provided by the government. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel.