ILMA Compoundings May 2018 - 47

WASHINGTON LANDSCAPE

Courts Split on Civil
Rights Act
By Daniel Bryant

T

itle VII of the Civil Rights
Act of 1964 (CRA) outlawed
employment discrimination
on the basis of race, color, religion, sex
and national origin, and it is generally
applicable to employers with 15 or
more employees.

While most elements of the statute
are clear, whether the CRA prohibits
employment discrimination on the
basis of sexual orientation has been an
open question. Several federal appeals
courts have recently weighed in on
the issue and have reached different
conclusions. ILMA members should
take note, as the law currently is
functionally different on the sexual
orientation question in various regions
of the country.
For example, the U.S. Court of
Appeals for the 2nd Circuit has held
that Title VII of the CRA extends
protections against workplace sexual
orientation discrimination for lesbian,
gay, bisexual and transgender (LGBT)
employees in Zarda v. Altitude Express
Inc. In the case, Donald Zarda claimed

he was unlawfully terminated from his
employment as a skydiving instructor
on Long Island, New York, because of
his sexual orientation.
Writing for the majority, Chief
Judge Robert Katzmann stated,
"Sexual orientation discrimination is
a subset of sex discrimination because
sexual orientation is defined by one's
sex in relation to the sex of those to
whom one is attracted ... making it
impossible for an employer to discriminate on the basis of sexual orientation
without taking sex into account."
The 2nd Circuit, with its decision,
joined the 7th Circuit finding that
Title VII provided LGBT employment
protections. In the 2017 7th Circuit
decision Hively v. Ivy Tech Community
College, an Indiana community college
teacher, Kim Hively, claimed she was
denied promotions at the academic
institution because she is a lesbian.
Chief Judge Diane Wood noted
in the majority opinion, "Viewed
through the lens of the gender
non-conformity line of cases, Hively
represents the ultimate case of failure
to conform to the female stereotype.
Hively's claim is no different from the
claims brought by women who were
rejected for jobs in traditionally male
workplaces, such as fire departments,
construction, and policing."
The decisions rendered by the 2nd
and 7th Circuits, however, conflict
with a decision from the 11th Circuit
from March 2017. In Evans v. Georgia
Regional Hospital, Jameka Evans alleged
that she was harassed repeatedly at
work and ultimately forced to leave her

employment as a security guard at the
hospital because she is a lesbian.
The 11th Circuit concluded that it
did not have the authority to extend
Title VII protections to cover sexual
orientation bias, stating that only
the U.S. Supreme Court had that
power. The case was appealed to the
high court, but the Supreme Court
declined to review the decision.
As a result of the split among the
circuit courts, the law is now different
in various regions of the country. The
11th Circuit decision that Title VII
does not protect against sexual orientation discrimination covers Alabama,
Florida and Georgia, while the 7th
and 2nd Circuits' decisions that Title
VII does extend those protections
affect Illinois, Indiana, Wisconsin,
Connecticut, New York and Vermont.
However, while the Supreme Court
elected not to clarify the matter in
2017, it is likely that it will hear a case
presenting a similar situation in the
near future. While it is never certain,
the probability that the court will
render a decision on an issue increases
substantially when there is a circuit
split - where the federal courts of
appeal have ruled differently on the
same issue - as is the current state
of the CRA matter. For now, business
owners, including ILMA members,
should be conscious of the status of
the law where they have operations.
Bryant serves as regulatory
counsel to ILMA through
Bassman, Mitchell, Alfano &
Leiter Chtd. He may be
reached at 202-386-7670 or dbryant@bmalaw.net.

47
ILMA Compoundings May 2018

Table of Contents for the Digital Edition of ILMA Compoundings May 2018
